KAMKUS COLLEGE OF LAW

LL.B. IIND SEM
INDIANAN LEGAL AND CONSTITUTIONAL HISTORY
CODE – K- 2005

UNIT – IST

LONG QUESTION:

Q.1. what was the system of administration of justice in Madras?

Ans.

ADMINISTRATION OF JUSTICE INMADRAS BEFORE 1726

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

Stages

Ist Stage1639-1666 IIIrd Stages 1686- 1726

IInd Stages 1666- 1686

FIRST STAGE

In 1639, an Englishman, Francis Day acquired a piece of land from 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 local population was called Black Town.
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White town before 1665 Madras was not presidency town and it was subordinate to Surat. The
administrative head was called ‘Agent’ and he was to administer the settlement with the help of
Council. The serious criminal cases referred by them to the Company’s authorities in England
for advice. But there was defects the judicial power of the agents and council was vague and
indefinite and much delay also, they did not have any elementary knowledge about law. They
were Merchant there was no separation between executive and judiciary.

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

Capital offences dealt by a jury there was no separation between executive and judiciary. The
president and the members of his council who were to decide cases and administer justice were
merchant. They did not have even elementary knowledge of English law. The cases were decided
by them according to their wisdom, commonsense. And the native judges were corrupt bribery
was rampant. They had no request for law and justice. Surat was the chief trading center till
1687. But there after it lost its importance because in 1687 the headquarters of the president and
council were transferred from Surat to Bombay.

BLACK TOWN

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

Second period (1666- 1686)

The High Court

The court of the Governor and Council was not functioning efficiently. The Council 1978
resolved that the Court of the Governor and Council should sit more regularly and would
administer justice in all case (civil and criminal) according to the laws of England. The Court
would sit on two days in a week and all trials would be conducted with the help of a jury of 12
men. This Court was called as the High Court of Judicature.

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The Choultry Court

Adigar Kannappa misused his office and power, so he was removed from his post and two
English officers were appointed to sit at Choultry Court was reconstituted. The former Indian
Officer was replaced by the three English Officers, who were to sit on two days in the week.
They were authorized to decide all cases up to the value of 50 Pagodas, that is, Rs 150. This
Court was also to decide petty criminal cases. From the decisions of this Court appeal could be
filed in the High Court that is, The Governor and Council’s Court.

THIRD STAGE (1686 – 1726)

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

In 1687 company sent from any land Sir John Biggs a professional lawyers learned in Civil Law
to act as the Judge Advocate of Admiralty Court bestowed justice in all cases civil, criminal as
well as maritime. Sir Biggs died in 1689 and Governor again took the charge of judicial function.
In 1692 the company sent John Dolben as new Judge advocate and in 1694 he was dismissed on
the charge of taking bribes. In 1696 company directed that members of the Council should in
succession serve as the judge Advocate after William Fraser a Merchant was appointed as Judge
Advocate. Later he resigned and no one was ready to become the Judge Advocate, so company
made the Court registrar the Judge Advocate.

Mayor's Court

The company’s Charter of 1687 established a Mayor’s Court at Madras. It consisted of a Mayor,
twelve Aldermen and sixty or more Burgesses. The first Mayor and Aldermen were nominated
by the Charter. The Mayor holds office for one year. Aldermen elected the Mayor annually.
The Mayor and Aldermen selected Burgesses whose strength was not to exceed 120. The Mayor
and three Aldermen were to be English servants of the company and others were to be from any
nation.

A man learned law called Recorder was attacked to Mayor’s Court. (Court of reward). The
Mayor court tried all civil cases up to the value of 3 pagodas all criminal cases with the help of
jury and punished the offenders by fine or imprisonment.

Appeals were allowed to the Admiralty Court. In civil matters, the Admiralty Court had decided
more than the value of 3 pagodas. In criminal cases, it had decided when the punishment was to

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lose life or limbs. Appeals from the Mayor’s Court and Admiralty Court were heard by Governor
and Council.

The Charter of 1726 established Mayor’s Court at Madras, Bombay and Calcutta consisted of a
Mayor and 9 Aldermen. Mayor and 7 Aldermen were to be English and the rest were subjects of
princely Indian States friendly with Britain. The Mayor holds office for one year. The Aldermen
hold office for lifelong. Every year the outgoing Mayor and Aldermen elected a new Mayor out
of the Aldermen. The Mayor and Aldermen filled up the vacancy of Aldermen from among the
inhabitants of the Presidency Town. The Governor in Council could dismiss the Aldermen on
reasonable ground. This court tried only civil matters. It granted probation of wills and letters of
administration in case of intestate. During the proceedings the parties were required to take oath
produce and examine witnesses and plead their cases.

Sheriff was appointed by Governor and Council. It is his duty to produce the defendant in the
court if a written complaint was filed by an aggrieved party. He executed judgments as in
English Law. Governor in Council heard appeals from the Mayor’s Courts up to the value of
1000 pagodas.

Q.2. The British Settlement of Bombay and development of its administration of justice
before 1726?

Ans.

British Settlement of Bombay In 1534

The Island of Bombay was acquired by the Portuguese King Alfonse’s VI from the King of
Gujarat Sultan Bahadur. In 1661, he transferred this Island to British King Charles II as dowry
on the eve of the marriage of his sister Princess Catherine with Charles H. As the King Charles II
found it inconvenient to exercise control over this small territory from England, therefore, he
transferred it to East India Company for a petty annual rent of $ 10 by the Charter of 1668. In the
same year King Charles II issued a Charter which empowered the East India Company to make
laws and ordinances for the good Government of the island and its inhabitants. Charter of 1668
also empowered the Company to impose pains, penalties and punishments by way of fines,
imprisonment or even death. However; such Laws were to be consonant with reason and were
not to be repugnant to the laws of England. A deputy Governor and Council were appointed to
administer Bombay subject control of the Governor.

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Development of Administration of Justice in Bombay Before The Administration of Justice in

Bombay during the period from 1668 to may be studied in-the following three stages—

STAGES

Ist stages 1672-1683 IIIrd Stages 1718-1726

IInd Stages 1683-1690

First Stage from 1668 to 161726

Gerald Aungier, the Governor of and Bombay, took keen interest in establishing a judicial
system in Bombay during this period two judicial systems were established. The first judicial
system in Bombay was-established in 1670 which created the wing types of courts -

Court of Custom Officer

In 1670 the Island of Bombay was divided into two parts, (i) Mazagaon and (ii) Girgaon. Each of
these parts had a court. Each Court consisted of 5 judges, one of*them being the English fleer
who was the presiding judge. These Courts consisted of Indian Judges also. This Court had both
civil and criminal jurisdiction. In civil (he Court could decide minor disputes up to the value of
200 seraphim’s. The Court exercised criminal jurisdiction over minor thefts of property, 5
Seraphim’s in value. It appears that the law administered was generally them. Portuguese law as
the judges was not conversant with the English Law.

The Court of Deputy Governor- in-Council

The Court of Deputy Governor in Council was a Court of Appeal and also a superior Court. It
heard appeals from the lower Courts and also tried cases which were beyond the jurisdiction of
the lower Court. Thus, it was both an appellate Court and the Court of original jurisdiction. The
trial in all cases was by jury. If in the dispute both the English and the Portuguese were involved,
such matters were to be tried by a jury consisting of English and Portuguese in equal numbers.

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In limited cases, an appeal would lie to the Governor-in-Council. It appears that, there could not
be any lawyers acting as judge in any of these Courts as the East India Company showed its
disinclination to send any lawyer to India. It was thought that a lawyer could only stir trouble and
strife in that settlement. The punishments awarded by the Courts were similar to those prevalent
in the country, rather crude and cruel. It may be noted that in this early attempt to establish a
judicial system, a clear-cut distinction could not be made between the executive and the
judiciary. Thus, the judicial system of 1670 was very elementary and primitive.

The Judicial Plan of 1672

Aungier introduced second judicial system in Bombay in 1672. Under this system, a court having
jurisdiction in all civil, criminal, probate and testamentary matters was established. On August 1,
1672, a governmental proclamation was made. By this proclamation the existing Portuguese law
in the Island of Bombay was abolished and it was replaced by English Law. Henceforth the
English Law was to be the law of the Island in all matters. Under this proclamation a new
judicial system was also established under which following three types of courts were created-

Court of Judicature

A court with George Wilcox as its judge was established to hear all civil and criminal cases. The
court also has the jurisdiction in matter of probate and testaments. For civil matters the court
starts once a week. All the cases were decided with the help of jury. A court fee of 5% was also
imposed in civil cases

For deciding the criminal cases, the court used to sit once in a month. For the purpose of criminal
administration of justice, Bombay was divided into four sections. For each section there was
appointed one Justice of Peace who worked as a committing magistrate. These Justices of Peace
sat in the court as assessors at the time of the trial.

Court of Conscience

This court was also presided over by Wilcox, but it was called as court of Conscience in the
sense that the justice was very quick and summary. It entertained only petty cases. Civil cases up
to 20 Earphones were taken by this court. There was no provision for any court-fee. Nor the
court took the help of jury. It may be said that the judge decided the matter to the best of his
judgment.

Court of Appeals

Deputy Governor and Council worked as Court of Appeal. They heard appeals against the
judgments of the court of Judicature in all matters. The judicial system which was so established
under the plan of 1672 Worked well: It was very quick, inexpensive and efficient. But the main
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defect was that the judges could not enjoy that much freedom as is required for good
administration of justice. The judges were not paid properly, they were always under the
subjection of the executive and they could be harassed by the officers of the Company.

Revolt of Captain Keigwin

The above system worked till 1683 when the Keigwin's rebellion put it to an end by capturing
the island. The Island remained under the rebellions for about a year and it was again recaptured
By the Company in 1684. After the recapture the Company established new judicial system.

Second Stage from 1684 to 1690

Under the new judicial system and Admiralty was established in Bombay on the lines of the
court of established in Madras under the Charter of Nov. 1683. The court had jurisdiction in
admiralty and maritime cases. But due to the absence of any other court at that time, in the
Presidency, even civil and criminal matters went to the court. However, after some time dispute
arose between Governor and Council and the Judge Advocate of the Court of Admiralty and the
result was that the Civil and Criminal jurisdiction was taken away from the hands of this court in
1685. In order to decide the civil and criminal matters, a court was established the line of the
court which existed under the plan of 1672. But no demarcation was made as to the jurisdiction
of this court and of the Court of Admiralty; therefore, disputes arose on the matters of
jurisdiction. The case which was taken to this court was sometimes objected to by the court of
Admiralty on the basis that they belonged to its jurisdiction. The bitterness the Judge-Advocate
and the Governor increased to the extent that after the retirement of the first Judge-Advocate, no
other lawyer member was ever appointed to the Court of Admiralty. In the absence of the lawyer
member the court could not function on the lines on which it has established.

Third Stage from 1718 to 1726-Court of Judicature

After nearly 30 years Court of judicature was established in Bombay on 25th March, 1718,
which ended the old judicial system. This Court consisted of an English chief justice, 5 English
judges, am 4 Indian judges. The Indian Judges were to represent the principal communities in
Bombay the Hindus, the Mohammedans, Christian, Portuguese and Parsis. The Indian judges did
not enjoy equal status with the English Judges. They played more or less a subsidiary role similar
to that assessor. Their main function was to acquaint the English judges with the local matters
and customs and the caste systems of the local people.

Jurisdiction of the Court of Judicature

Court of Judicature jurisdiction to decide Civil, Criminal and Testamentary matters it administer
justice according to law, 'equity’ and good conscience and the rules and ordinance of the

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Company. It was also a place where several transactions could annual could be preferred from
the decision of this Court to the Governor and Council. The trial was not by jury. The Court sat
once a week and decided various types of cases.

Criminal Jurisdiction

This Court had exercised jurisdiction over all criminal matters excepting those which were to
result in capital punishment. The Court of Governor and Council alone could award capital
punishment. Generally, a fair hearing was given to the parties but there were also cases where the
Court acted on mere suspicion. The need of criminal justice preventive and deterrents Branding,
whipping, imprisonment during pleas were common.

Q. 3. In what respect the judicial administration setup in Calcutta differed from other
Presidencies? Discuss in Detail?

Ans.

Administration of Justice at Calcutta

1660 To 1726 in the year 1668, the grandson of Aurangzeb, Azimush-shan, and the Suborder of
Bengal gave Zamindari of villages, Calcutta, Sutanati and Govindpur for annual revenue of 1195
Rupees to the East India Company. The foundations of Calcutta were laid on 24th August 1690
under the leadership of Job Charnock.

In December 1699, Calcutta became Presidency Town and a president or Governor and Council
was appointed to administer the settlement. The acquisition of zamindari was very important to
the Company which secured a legal and constitutional status within the framework of the Mughal
administrative machinery. As a zamindar the company got all the powers which the other
zamindars of Bengal received at that time. In Moghul Empire, zamindars got no significant
judicial powers, but collected the revenue and maintained law and order in the zamindari area or
villages.

For judicial purpose at that time Kazis court were established in each district or Sarkar, parganah
and villages. They handled civil and criminal matters. Normally village Panchayat solved all
problems excepting serious crimes, In Hindus, elders or Brahmins solved the problems.

The judicial system was simple, as everyone knew each other and transactions of each other.
Moghul Kings never paid any attention to judicial system and the judicial dept. wasn’t very well

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organized under the Mughals. When the Mughal admin structure started disintegrating and the
Nawab’s authority weakened in Bengal, degeneration in the ranks of the kazis.

The post of Kazi was sold many times; the highest bidder became the Kazi Justice was
purchased, corruption was rampant Kazi never got salary, so kazi court fined the criminal and
earned money, after this demanded money from the complainant for giving him justice.

The zamindars came to administer justice in all cases, civil, criminal and revenue. The appeals
went to the Nawab’s court in theory but in reality not many appeals were actually taken. The
zamindar could even award capital sentence but only with the confirmation of the Nawab’s
Government. . The zamindar charged high fees for deciding civil cases in their courts.

The judgments’ by the zamindars were mostly discretionary; there was no definite body of law
which they administered.

Nawab’s Courts at Murshidabad was not in a great state either. Theoretically it was the highest
criminal court as the Nawab was the head of the Nizamat and responsible for maintenance of law
and order and admin of criminal justice. While earlier the nawab used to preside over the court,
later the Nawab deputy known as the Darogah-adalat-al-alia, began to exercise all of the
Nawab’s judicial functions. The highest civilian court was that of the diwani and thus
responsible for 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.

The Kazi administered justice in claims of inheritance and succession and in causes concerning
marriage:

Mufti, a learned jurist, helped the kazi in discharging judicial functions.

The faujdar’s function was to suppress serious crimes,

kotwal took care of the petty criminal cases,

The mohtassib took cognizance of drunkenness, selling of liquors and examination of false
weights and measures. Thus while the appearance of a working judicial system was maintained,
in actual practice the administration of justice was in a very poor shape in Bengal.

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JUDICIAL SYSTEM AT CALCUTTA

The zamindari functions of the company within Calcutta were given to an English officer, the
collector or the zamindar, who was a member of the Governor’s Council. He discharged judicial
powers in all cases, civil, criminal and revenue. Criminal cases were decided quickly and without
a jury. The usual methods of punishment were whipping, fines, imprisonment, banishment and
death. Death sentence was inflicted by whipping to death.

The zamindar’s court was confined not only to the Indians but also tried cases of petty crimes
and misdemeanours committed by the Englishmen. However serious crimes of Englishmen were
tried by the Governor and Council under the authority of the Charter of 1661.

The zamindar also tried civil cases arising among the Indians. The judge acted in a quick
manner. Appeals lay to the governor and council.

The collector of zamindar took charge of the revenue cases also, since they were responsible for
collection of land revenue.

Some important features of the judicial system at Calcutta

1. While in case of other zamindars, a capital sentence was executed only after confirmation
with the Nawab, and appeals in civil cases lay to the courts at murshidabad, but the British
within their own zamindari, took permission for awarding death sentences, from the governor
and council without making any reference e to the Nawab.

2. Also appeals from the collector’s court in all cases went to the governor and council and
not to the nawab’s courts.

Thus from the very beginning, the company’s representatives were very authoritative and the
company sought to act as a territorial sovereign as far as Calcutta was concerned and tried to
reduce the nawab’s authority from the governance and administration of Calcutta.

Thus here too the judicial system was very elementary and was quite partial. This system
continued till the Charter of 1726 was brought out. While till now the judicial system was based
on the company’s authority, with the Charter of 1726, it derived its authority from the royal
charter.

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Q. 4. Discuss the composition, Jurisdiction and working of the Mayor’s Court establish
under the charter of 1726?

Ans. Mayor’s Court

Mayor's Court under the Charter of 1687 A Corporations was set up by the Company at Madras
on 29 Sep., 1688, under the Charter of 1687. It was created with the purpose of associating
natives with the Englishmen to fulfill this purpose, the Company wanted to undertake certain
public fare activities for which funds were needed. The Corporation cotters taxes and raised
funds from the inhabitants of Madras.

Composition

The Madras Corporation consisted of an English Mayor, twelve Aldermen and sixty or more
Burgesses. Out of the twelve Aldermen, three were to be the covenanted English servants of the
Company while the rest could be of any nationality. The Mayor was to hold office for one year
and he was elected by the Aldermen from amongst themselves. The aldermen held office for life
or till the residence in Madras, The vacancy of an Alderman was to be filled up by election from
amongst the Burgesses. The Burgesses were to be elected by the Mayor and Aldermen while few
of them were nominated by the Company from the heads of the various castes.

Civil and Criminal jurisdiction

The Mayor and Aldermen constituted a civil court, while the Mayor and three senior Aldermen
were Justices of Peace having criminal jurisdiction. The Mayor and two Aldermen formed the
quorum. The Court held its sitting only once in a fortnight and decided criminal cases with the
help of jury. The Court could award the sentence of imprisonment or fine. Appeals from the
decisions of the Mayor's Court lay to the Admiralty Court in ease the value of the civil case

Exceeded three pagodas, and in criminal cases, where the offender was sentenced to death or loss
of limb.

Court of Record

The Mayor's court constituted a Court of Records since a Recorder was also attached to the
Court. As all the members of the Mayor's Court were lay persons without expertise in law. It
dispensed justice "in a summary manner according to equity, justice and good conscience" and
law enacted by the Company. Obviously, this was bound to result into uncertainty and lack of
uniformity in laws. For the purpose of providing the services of a person having legal
knowledge, the Company appointed Sir John Biggs, the Judge-Advocate of the Admiralty Court,
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as the Recorder of Mayor's Court in 1688. This appointment of Sir John Biggs as a Recorder of
the Mayor's court created an anomaly because as a Judge-Advocate of the Admiralty Court, he
also heard appeals from the Mayor's Court, with which he was associated as a Judge. However,
this anomaly did not last long since Sir John Biggs died in 1689, and thereafter, the Company did
not appoint any Recorder in the Mayor's Court.

Mayor's Court under the Charter of 1726

Civil Administration and Establishment of Mayor's Court in Presidency Towns—

The Mayor and nine Aldermen of each Corporation formed a Court of Record which was called
the 'Mayor's Court'. It was empowered to decide all the civil cases within the Presidency town
and the factories subordinate thereto. The Mayor together with two other English Aldermen
formed the quorum. The Court also exercised testamentary jurisdiction. It could grant probates of
will and Letters of Administration in case of intestacy. The Court was to hold its sitting not more
than three times a week. An appeal from the decision of the Mayor's Court lay to the Governor
and Council. But in cases involving the value of-subject-matter above 1,000 pagodas, a further
appeal lay to the King-in-Council. Being a Court of Record, the Mayor's Court could punish
persons for its contempt. The process of the Court was to be executed by the Sheriffs, the junior
members of the court who were initially nominated but subsequently chosen annually by the
Governor and Council. There was no specific mention in the Charter of 1726 as to the law which

was to be applicable in the Mayor's Court but since the earlier Charter of 1661 provided that
justice was to be administered in accordance with the English law, it was presumed that the same
law was to be followed by the Mayor's Court in deciding the cases.

Q. 5. Discuss the Provisions and defects of the Charter of 1753 and compare it with the
Charter of 1726?

Ans.

The Provisions of Charter of 1753

The Charter of 1753 was a modified and reformed version of the Charter of 1726. The conflicts
and clashes between Mayor's Court and the Governor and Council created much confusion and
chaos in the Presidencies in India. The Company, therefore, requested the British King George U
to issue a fresh Charter so as to introduce suitable amendments in the earlier Charter of 1726,
The Charter of 1753 was an attempt to improve upon the earlier Charter of 1726 which suffered
from several lacunas and defects. The main provisions of this charter were as follows-

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1. Revival of Mayor's Courts with Modification

The British King George II granted a new Royal Charter fur the Presidencies of Madras, Bombay
and Calcutta whereby the Corporation of Madras which ceased to function because of French
occupation during the period Tor 1746 to 1749 was revived again and the jurisdiction of all the
three Mayor's Courts of Presidencies were modified to overcome the shortcomings of its earlier
working.

2. Mayor's Courts were subordinated to the Governor and Council

With a view to end the strained relations between the Mayor's Court and Corporation on the one
hand and the Governor and Council on the other, the Charter of 1753 brought the Corporation of
each Presidency under the control of the Council by changing the mode of appointment of Mayor
and Aldermen. Under the new Charter, the Governor and Council was empowered to select the
Mayor out of a panel of two names elected by the Mayor and Aldermen. The Council also
assumed full power to appoint Aldermen in the Corporation and dismiss them. Thus, the Mayor's
Court was completely subordinated to the Executive Council.

3. Natives were to be governed by their own Laws

The Charter of 1753 provided that the Mayor's Court were not to try civil cases between natives,
such cases being left to be decided by the natives themselves. However, the Mayor's Court could
decide only those cases of the natives in which both the parties consented to accept the
jurisdiction and decision of the Court. Some authorities have asserted that though the Charter
clearly provided that cases of natives were to be decided by their own laws, customs and usages,
but this was never followed in practice in Bombay.

4. Change in Oath System

In order to end the controversy regarding the taking of oath, the charter expressly provided that
the native Indians and Christians could be allowed to hike with in such a manner as they deemed
most binding on their conscience to speak out the truth.

5. Depositing of Court-fee by (lie Litigants)

This charter provided that the litigants would deposit money of court fee with the Government
and not with the Courts. This was intended to ease the burden of courts.

6. Establishment of the Court (if Requests)

The Charter provided for the establishment of a new Court, culled the Court of Requests in each
Presidency town to decide civil cases up to five pagodas. The civil cases exceeding this value

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were too he decided the Mayor's Court. The object of establishing Courts of Requests was to
provide cheap and quick justice. It consisted of Commissioner varying from eight lo twenty four
in number and three of them were to sit in rotation once a week. The first Commissioners were to
be appointed by the Governor and Council but thereafter half of them were to be appointed by
the Governor mid Council but thereafter half of them were to retire every year and the vacancies
so caused, were to be filled in by the remaining Commissioners, through the system of ballots.
Thus, the Court of Requests was an inferior court subservient to the Council. Its jurisdiction was
extended to all inhabitants, including the natives.

Judicial Arrangement under the Charter of 1753 the following courts were established under of
the 1753 for the administration of justice in the three Presidencies-

1. The Court of Requests

This court was to decide summarily the petty civil cases up to five pagodas. Now these cases
could not be tried by the Mayor's Court.

2. The Mayor's Court

This Court had jurisdiction to hear civil cases involving a sum exceeding five pagodas. It had
jurisdiction over the cases of natives provided both the parties lo the suit voluntarily submitted to
the jurisdiction of the court.

3. The Court of Governor-in-Council

This court had exclusive jurisdiction over criminal cases, as the Governor-in-Council acted as
Justices of Peace and held Quarter sessions to decide criminal cases. It was also empowered to
hear appeals from the Mayor's Court.

4. The Court of King-in- Council

The King-in-Council in England was empowered to hear appeals from the Court of
Governor-in-Council in all-civil cases involving a sum of 1,000 pagodas or more.

Working of Judicial System King-in- Council under the-Charter of 1753

The judicial system introduced by the Charter of 1753 created difficulties in settlement of civil
cases of the natives residing in the presidency of Madras and involving a sum exceeding 5
pagodas. The court of Requests could decide cases only up to the value of five pagodas. These
cases could not be tried by the Mayor's Court unless both the parties voluntarily submitted to the
jurisdiction of the court and accepted its decision. The problem continued in the Presidency of
Madras until the introduction of the Recorder's Court in 1798. The Presidency of Calcutta did not

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have this problem because of the existence of the Zamindar's Court which had jurisdiction to
decide the cases of the natives. So far the Presidency of Bombay was concerned, it appears that
the exemption granted to natives from the jurisdiction of Mayor's Court by the Charter of 1726,
was in fact never" effectively followed in practice and the Mayor's Court freely decided the cases
of natives ignoring the exemption granted to them by the earlier Charter.

Defects of the Charter of 1753

1. The Mayor's Court-of each Presidency consisted of company's servants who were appointed
by the Governor and Council. Thus, the court lost all its independence and could no longer
remain impartial in cases where the company was one of the parties to the suit.

2. The servants of the company were allowed to carry on their private trade. Consequently, there
were often disputes between them and the natives. The Mayor's court being a court of the
company's junior servants usually took the partisan view and favored their fellowmen. Besides,
the Governor and Council also exerted undue pressure on the judges of the Mayor's court. This
frustrated the cause of justice.

3. The Governor and Council had jurisdiction over civil as well as criminal cases. They were also
the executive Heads of their Presidency. Consequently, they exercised certain legislative powers
as well. Thus, all the three functions were centralized in a single authority which was a derogate
step so far independence of judiciary was concerned.

4. The judges of the Mayor's Courts were laymen and not well versed in law. They were
supposed to follow the English law but had no knowledge of it. In the absence of law-reporting
in India, the complicated cases had to be referred to England for opinion. This caused difficulties
and delay in the disposal of cases.

5. The exclusion of Indians in sharing the administration of justice was the most disgusting
feature of the history of early courts. Significantly, the Indian Christians were allowed to
participate as Jurors in the court of Sessions under the Charters of 1726 and 1753.

6. The territorial jurisdiction of all the courts established under the Charter of 1753 was confined
to the respective Presidency. Therefore, there was no forum to take cognizance of cases arising
beyond those limits whereas the activities of the English Company and its servants had extended
beyond these territories.

In spite of the above mentioned defects in the judicial scheme introduced by the Charter of 1753,
it must be accepted that it made a good beginning for the establishment of a uniform judicial
system in the company's settlements on the basis of English law and procedure and thus laid the
foundation for an improvised judiciary in times to come. In 1770 Bolt made a bold attempt to

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make the Mayor's courts independent of the control of the Governor and Council who had the
power of obstructing and interfering with the course of justice in presidencies. He suggested that

Appellate jurisdiction of the Governor and Council's Court should also be abolished and instead,
a Court of Appeals should be instituted to hear appeals from the Mayor's Court. This Court of
Appeals should also be completely independent of the Governor and Council's influence.
However, these suggestions of Bolt could not be implemented. In 1774 the Mayor's Court of
Calcutta was replaced by the Supreme Court of Judicature. The Mayor's Courts at Bombay and
Madras were replaced by the Recorder's Court in 1798 by the Charter issued by King George
111 on Feb. 1, 1798 for this purpose.

Comparison of the Charter of 1753 with the Charter of 1726

Taking into consideration the various provisions noted above it can be said that in effect the
Mayor and Aldermen became the nominee of the Government. The Charter of 1753 reduced the
powers and independence of Mayor's Court was no doubt, retrograde step and Charter of 1753
was inferior to that of 1726 in the respect. Criticizing the system, Bolt said that the "Mayor's
Court had the power of electing their own members to fill up des," that court was the bulwark of
all security with regard to property in the settlement and might be considered in a great degree as
independent. "But the Charter of 1753 transferred the right of nominating Aldermen to the
Governor and Council who thus got the 'unconstitutional' power of "making and unmaking the
judges." The Govt. had now the power to appoint and dismiss the Aldermen i.e., judges of the
Mayor's Court, and therefore, the judiciary both civil and criminal, became very closely
connected with the executive. Judiciary infect became a mere branch of executive whereas the
separation of executive from judiciary is the cardinal principle for imparting an unbiased justice.

Q. 5. Discuss the relationship between the Mayor’s Court 1687 and 1726?

Ans. THE MAYOR’S COURT

The charter of 1726 provided for the establishment of a corporation in each presidency town. The
charter is considered to be an important landmark in the history of legal system in India as it
introduced the English laws into the country.

Factors leading to the Establishment of Mayor’s Court

Before 1726 there were different judicial system functioning in the British Settlement which
were increased in number by 1726, as a result the servants of the many, working at such different
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settlements were subject to different sets of courts. There was, thus a lack of uniformity in the
British settlements, for the same offence wild entail different and sometimes Contrary Penal
Consequence. There was also another factor which compelled the Company to have a uniform
law.

There were quite important distinguishing feature between the Company’s Mayer’s Court and
the Crown’s Mayor’s Courts established under the Charter of 126. The main differences are
given below,

1. The Mayor’s Court under the Charter of 1687 was created by the Company while the
Mayor’s Courts under the Charter of 1726 drew their power directly from the Crown. Thus the
latter were on a superior footing than the former

2. The Charter of 1687 created only one Mayor’s Court at Madras; it did not touch the
judicial system prevailing in other settlements, presidencies under the Company. The Charter of
1726 created Mayor’ Courts at all the three presidencies that is Madras, Calcutta and Bombay
thus, for the first time, establishing a uniform judicial system.

3. The Mayor’s Court established under the Charter of 1687 enjoyed both civil and criminal
jurisdiction. While the mayor’s courts established under the Charter of 1726 mayor’s Courts
established under the Charter of ( were given jurisdiction in civil matters including testamentary
and probate of wills jurisdiction, Criminal matters were left to be decided by am within the
jurisdiction of, Governor-in-Council which acted as a court i such matters.

4. The Charter of 1726 made, for the first time, a provision for a second appeal to the
King-in-Council which became a precursor of the Privy Council later on. Thus under this
Charter, the first appeal could be filed before the Governor-in-Council and the second (although
in some cases) appeal could be taken to the King-in-Council in England. The Charter of 1687 did
not make such provision. The appeal from the Mayor’s court could be filed before the Admiralty
Court.

5. The Mayor’s Court established under the Charter of 1687 made a provision for the
representation of the natives on the court. The Crown’s Mayors Courts did not have any such
representation, though there was a provision I for the same in the Charter of 1726.

6. No doubt, the Crown’s Mayor’s Courts established under the charter of 1726 were
definitely superior courts so far as their status is concerned, but in strict judicial and legal
manner, the Company’s Mayor’s Court was better equipped, for there was a provision for a
lawyer-member who was to be called the Recorder. The Charter of 1726 although it purported to
improve the judicial system in India, did not make any such provision. Thus the Courts

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established in 1726 were mostly composed of Company’s civil servants who did not have
sufficient experience in legal matters.

7. There was yet another important distinction between the two Mayor’s Courts. The
Company’s Mayor Court evolved its own procedure and dispensed justice in accordance with the
rules of common sense, equity and good conscience. It avoided the intricate procedural
technicalities. But the Charter of 1726 which introduced the British laws into India brought all
the legal technicalities of the British Courts of law. Thus the entire gamut of British laws and its
procedure were foisted on the Courts established under the Charter of 1726.

8. The Charter of 1726, in a way, did away with the concept of separation between the
executive and the judiciary in criminal matters. The Governor-in-Council acted as the criminal
court while the Mayor’s Courts handled only the civil matters and testamentary and probate of
wills cases. On the other hand, the Mayor’s Court at Madras was invested with power to handle
all civil and criminal matters and appeals from its decisions went to the Admiralty Court rather
than the Governor-in-Council.

The Charter of 1726 also constituted a Mayor’s Court for each of the presidency towns
consisting of a Mayor and nine Aldermen. Three of them i.e., the Mayor or senior Alderman
together with two other Aldermen were required to be present to form the quorum of the Court.
The Mayor’s Courts were declared to be present to fan the quorum of the Court. The Mayor’s
Courts were declared to be Courts of record and were authorized to try, hear and determine all
civil actions and pleas between party and party. The Court was also granted testamentary
jurisdiction id power to issue letters of administration to the legal heir of the deceased person. It
was authorized to exercise its jurisdiction over all persons living in the presidency own and
working in the Company’s subordinate factories.

Appeals from decisions of Mayor’s Court were filed in the Court of Governor and Council. A
second appeal in cases involving 1000 pagodas or more could be made to king-in-council in
England. The court of Governor and Council also decided criminal cases.

Mayor’s Courts under the Charter of 1687 and 1726

Comparison— Apart from the apparent similarity of names there was a vast difference between
the two Charters. The main differences may be enumerated as under:

1. The Charter of 1687 applied to Madras only while the Charter of 1726 applied to all the
three Presidencies.

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2. The Mayor’s Court established under the Charter of 1726 had the jurisdiction in Civil
matters only in addition to its testamentary and probate jurisdiction, while the court under the
Charter of 1687 had the jurisdiction in criminal matters also.

3. Appeals against the judgments of the Mayor’s Court under the Charter of 1687 went to
the Court of Admiralty while from the Mayor’s Court under the Charter of 1726, to the
King-in-Council.

4. The Mayor’s Court of 1687 was a Court of the Company while the court established
under the Charter of 1726 was the Court of the Crown.

5. The Mayor’s Court under the Charter of 1687 was better in one respect that it had a
lawyer-member called Recorder while in the Court under Charter of 1726 there was no provision
for any lawyer-member.

6. In procedural matters, the court under the Charter of 1726 had to observe the
technicalities of the courts in England while the Court under Charter of 1687 was guided by its
own procedure of convenience.

7. In the Court under Charter of 1687 there was good representation of Indians while under
the Charter of 1726 in spite of the provision for two Indian members none was ever appointed in
practice.

8. Under the Charter of 1726 the criminal jurisdiction was completely assigned to the
executive, i.e., the Governor and Council, while under the earlier Charter it belonged to the
Mayor’s Court and the Admiralty Court.

Short Questions

Q. 6. Give a brief history of the British settlement and administration of justice of Surat?

Ans.

British Settlement at Surat

The East India Company established its first factory at surat 1612 during the time of Jahangir. To
get the favour and protection of the Mughal Emperor James Ist sent Sir Thomas Roe to him in
1615 as king’s ambassador. The Emperor issued a ‘Fireman’ granting certain facilities to the
English people to carry on their trade activities in a hired house at Surat; to live a according to
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the laws, religion and custom of England and to be judged by their own laws in their disputes.
However, a disputes arising between an Indian and English was to be decided by the local Indian
courts with the utmost expediency.

Constitution and Administration of Justice at Surat Factory

The factory was administered by president and council. They were appointed by the Company.
The majority of the members of the council were the decisions of the Company. Apart from
exercising their powers for trading purposes the president and Council also had the power to
administer law and justice. However, very little is known about the judicial system of British
people that existed at Surat. So much is clear that the English people were governed by a dual
system of law, namely-

1. In their own matters by law of England; and

2. in matters with Indians by the native law of this Country.

Q. 7. What Change was made by the Charter of 1753 in the Charter of 1726?

Ans. Changes made by the Charter of 1753 in the Charter of 1726

As a matter of fact the Charter of 1753 was a modified and reformed version of the Charter of
1726. Some of the important changes made by it are as under-

1. To avoid the disputes between the governor and Council on the one hand and the
Mayor’s Court on other, the Charter put the Corporation fully under the subjection of the
Governor and Council. The provision existing till now for the election of the Aldermen was
abolished and it was laid down that the Aldermen of the Corporation shall be appointed by the
Governor and Council. The Mayor, instead of being elected by the Aldermen, was also o be
selected by the Governor and the Council out of the names suggested by the Aldermen.

2. The natives were clearly excluded from the jurisdiction of the Mayor’s Court.

3. Some provision were made to provide effective and impartial justice e.g., the Mayor’s
Court could take action against the Mayor himself; no one could sit in the Court to decide a
matter in which he himself was interested, the Court was empowered to hear cases against the
Company etc.
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4. The Court of Request was created to hear small civil cases up to the Value of 5 pagodas.

Q.8. what were the main features of the Charter of 1726?

Ans. Main Features of Charter of 1726

The main features of the Charter of 1726 are as under—

1. The Charter for the first time established the Crown's Court in India

2. The Charter brought about a uniform system in all the three Presidencies of Bombay,
Madras and Calcutta and the different types of systems exiting till then were abolished.

3. The judicial system established by the Charter had more regularity and definiteness than
the earlier system.

4. For the first time the jurisdiction of the Privy Council was extended to the country. Hear
lies the start of the introduction into our land, of the principles of English Law through judiciary.

5. A legislature for each Presidency with the power of making necessary law was
established by this Charter.

6. The Charter of 1726 is also very important in the statutory laws of England passed after
its issuance did not from the part of the laws of this country.

Very short Questions

Q.9. How and when "The East India Company" was formed?

Ans. Formation of the East India Company

The earliest British establishment for India was created by a Charter of 'Queen Elisabeth' issued
on 31.12.1600 by this Charter the East India Company was incorporated in England. Its full
name was "The Governor and Company of Merchants of London Trading into the East Indies."
In the beginning it was created for fifteen years but the Company could be wound up even
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earlier. However; on 31-5-1609 by a new Charter James I gave a perpetual life to the Company
subject to the Crown's power to revoke it on 3 years' notice on proof of injury to the nation. The
total members of the Company constituted a General Court. The General Court elected a
Governor and twenty four directors for managing the Company's business. Governor and
directors together were called as 'Court of Directors". The Court of Directors was elected
annually, but its members were eligible for reelection. However, they could be removed from
their office by the General Court even before the expiry of their term.

Q. 10. What were the powers and functions of East India Company originally?

Ans. Powers and Functions of East India Company

The Company was originally created to carry on and enjoy an exclusive trading right in the
Countries lying beyond the Cape of Good Hope eastward viz., Asia, Africa etc. No British
citizen could carry trade activities in this area without a license from the Company. At the same
time some more powers were given to the Company which was in the nature of Legislative
powers. The Company in its General Court could pass laws, orders and ordinances for its good
government, for its servants and for the furtherance and continuance of its trade and traffic. It
could also punish the persons disobeying its laws. However, no punishment could be given
which was unreasonable or contrary to the laws, statutes or customs of England.

Q.11. what do you mean by the Court of request?

Ans. Court of Request

Under the Charter of 1753 a Court of Request was created to hear small civil cases up to the
value of 5 pagodas. The Court used to sit once in a week. The judges of the Court were called
Commissioners who were appointed by the Governor and Council from amongst the servants of
the Company. The number of the Commissioners was between 8to24. Three of these
Commissioners used to sit in the Court at a lime by rotation. The Court used to give very quick
judgments in the cases coming, before it. It also had the jurisdiction to decide the, matters of
native people.

Q.12. what do you mean by Choultry Court?

Ans. Coultry Court

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The Choultry Court existed in Madras to decide the cases up to the value of 20 pagodas. This
Court continued to decide cases up to 1774, when some temporary arrangements were made by
the Company's Directors and the Choultry Court was temporarily abolished, but it began to work
again in 1775 and continued till 1800 when it was finally abolished. After it a Court under a
servant of the Company was created to decide the disputes between the natives up to the value of
5 pagodas.

UNIT-II 
Long Questions

Q. 1. Write a note on the reforms "made by Warren Hastings in the

administration of law and justice in Bengal. What is his special contribution for
the preservation of Indian Law?
Ans. Contribution of Warren Hastings in the Preservation of Indian Laws
The Judicial Plan of 1772 safeguarded the personal laws of Hindus and Muslims. The cases
relating to inheritance, marriage, caste etc. were to be decided according to the laws of Quran
with regard to Muslims, and laws of Shastras with respect to the Hindus. Both, Hindus and
Muslims were treated alike. This provision shows the foresightedness of Hastings as an efficient
administrator. He even favoured the compilation of a digest of Hindu Law for the guidance of
Civil Courts. Thus, he tried to correct the defects of the preceding judicial and revenue system
without interfering with the local traditions and customs of the natives.
Although, the judges of the Adalats were Englishmen but they were assisted by the Native law
officers who expounded personal laws of parties and enlightened them with the traditions,
customs and usages of the natives. The participation of native law officers in the judicial system
infused confidence and trust among the native inhabitants about the impartiality of English
judges.
Thus, the Judicial Plan of 1772 paved foundation for sound judicial system in subsequent years.
Prof. M. P. Jain said that the foundation of Anglo Indian Justice was laid down by Warren
Hastings, over which the later administrators especially Lord Cornwallis built up the
upper-structure of judicial administration. Since the working of the judicial scheme under the
Plan of 1772, resulted into a considerable loss of revenue earnings of the Company's
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Government Consequently, in 1773 the Court of Directors directed the Governor and Council in
Calcutta, to Withdraw Collectors from Districts. Obviously, this needed a fresh Plan which
Warren Hastings introduced in 1774 to be known as the "System of Provincial Council."

Judicial Plan of 1774

The Abolition of the institution of collector in 1773 on the advice of the Court of Directors of the
Company in England up-set the judicial arrangement of 1772 and a new Plan became an urgent
need of the time. Warren Hastings prepared a new Plan on November 23, 1773 which was
implemented in January, 1774. The new judicial reforms of Hastings can be discussed under the
Following three heads—
1. Establishment of Provincial Council for Civil Justice
Under the Judicial Plan of 1774 the entire Diwani area of Bengal, Bihar and Orissa was divided
into six divisions with headquarters at Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and
Patna. Each division consisted of several districts. A 'Provincial Council' consisting of five
Covenanted servants of the company were established in each of these divisions except Calcutta
where a 'Committee of Revenue' was set up. These Councils supervised the revenue collection in
the Division and heard appeals from the Mofussil Diwani Adalats from the districts within its
territorial jurisdiction.

Recall of Collector and Appointment of Diwan

The post of Collector having been abolished in 1773 now each district was placed, in charge of
an Indian officer called the 'Diwan' or the 'Amil'. His main function was to look after the work of
revenue collection in his district. He also presided over the Mofussil Diwani Adaiat of the district
which was previously presiding by the Collector. Appeals from Mofussil Diwani Adalats were to
be taken to the Provincial Council, which in this 'Capacity was known as the Provincial Court of
Appeal, the decision of the Provincial Court of Appeal (Provincial Council) was final in all cases
up to the value of Rs. 1, 0007- but if the value of the subject-matter of the suit exceeded this
Amount, a further appeal lay to the -Sadar Diwani Adalat. The Provincial Council also had
original jurisdiction to decide all cases arising at the headquarters of the division, in the first

24 

 
  

instance. Thus, the Provincial Council had both, the original as well as the appellate jurisdiction
over civil cases. It was also empowered to hear complaints against the head farmers, Naib
Diwans, Zamindars and other officers of the Government.
2. Establishment of Board of Revenue at Calcutta for Revenue Administration
The head of the district, i.e., the Diwan was to collect revenue under the supervision of the
Provincial Council. The Provinccial Councils were to supervise revenue collection in their
respective divisions. They were further subjected to overall control and supervision of the Board
of Revenue at Calcutta.
3. Establishment of the Court of Naib Nazim or Diwan for Criminal Justice
Under the Judicial Plan of 1774, the supervision of the Collector on the working of the
Mofussil Fouzdari Adalats and that of the Governor and Council over the Sadar
Fouzdari Adalat, came to an end. Now Sadar Fouzdari Adalat was shifted from
Calcutta to Murshidabad and placed under the supervision and control of the Nawab;
A new office of Haib Nazim was created who controlled the working of the Sadar
Nizamat Adalat on behalf of the Nawab. Mohammad Raza Khan was appointed as
Naib-Nazim.

Q. 2. Write a note on the Warren Hastings Judicial Plan of 1772 and 1774 and
indicate its influence on the system of administration of justice of India?
Ans. Introduction
Warren Hastings remained Governor of Bengal from 1772 to 1774 in 1774 he was promoted to
the rank of Governor-General. He remained on this post till 1785. He was a competent and an
efficient administrator. The Administration of justice at the time Warren Hastings took over as
Governor of Bengal was in a bad shape. It was almost verging on a total collapse. The dual
system of government proved very defective and unsatisfactory. The courts had become the
instruments of power rather than of justice. Warren Hastings who assumed office of Governor of
Fort William on April 13, 1772, made strenuous efforts to remove the evils in the existing
judicial administration and revenue collection. For this purpose, he appointed a committee

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consisting of the Governor and four members of the Council called the 'Committee of Circuit'.
The Committee prepared a Judicial Plan on August 15, 1772 to regulate the administration of
justice and revenue collection. This plan was popularly known as the 'Hastings Plan of 1772."

Hasting's Judicial Plan of 1772

This Plan consisted of 37 regulations dealing with civil and criminal laws. He divided the Diwani
area of Bengal, Bihar and Orissa into several districts, each having .in English officer called the
'Collector' as its head. Thus, district was the unit of administration for justice and revenue
collection. The Collector was primarily responsible for collection of revenue. The main features
of Judicial Plan of 1772 are as under:
1. Reforms Made in Revenue Administration
In whole revenue system was reorganized. The Revenue Boards at Murshidabad and Patna were
abolished and a supreme authority called the Board of Revenue was set up in Calcutta which
consisted of the Governor and all the members of the Council. The District Supervisors who
Were appointed in 1769 by Verelst were made Collector of their respective districts and were to
look after the worker of revenue collection. He was assisted by a native officer called the Naib
Diwan who acted as a native revenue executive. All orders were to be issued by the Collector
under the Company's seal and funds were to pass through him to the treasury at Calcutta.
2. Reforms Made in the Administration of Civil Justice
The following three types of courts were established or the purpose of making reforms in the
existing judicial system—

Small Causes   
Moffussil Diwani Adalat 
Adalat 

Mofussil Diwani Adalat

In each district, a Mofussil Diwani Adalat was established which was presided over by the
Collector as the Judge. The Court took cognizance of all civil cases including property,

26 

 
  

inheritance, succession, caste, marriage, contracts, accounts etc. The cases relating to caste,
religion, marriage and inheritance of the native were to be decided according to their usages and
customs of Hindu law for Hindus and Muslim law for Mohammedans was applied. The Collector
Being an Englishman, was ignorant about the personal laws of natives, hence he was assisted by
native laws officers called Kazi and Pandits who expounded the law to him. The Court held its
sittings twice a week in open court. The matters relating to succession to Zamindari and
Taluqdari property could not be submitted to Mofussil Court as they were reserved for the
Governor and Council. Appeals from these courts were to be heard by the Sadar Diwani Adalat
at Calcutta where the subject-matter of the case exceeded rupees five hundred.
1. Small Causes Adalats
There were Small Causes Adalats headed by the Head Farmer of the Pergunnah decided cases up
to the value of rupees ten.
2. Sadar Diwani Adalat
A Sadar Diwani Adalat was established at Calcutta which exercised appellate jurisdiction over
Mofussil Diwani Adalats in all cases where the subject-matter of the suit exceeded Rs. 500/-.
This Court comprised Governor as its President and at least two members of the Council aided
by Diwan of Treasury and Chief Kanungos.
3. Reforms Made in the Aministration of Criminal Justice
For the purpose of reforming the criminal administration of justice two types of courts were
established—

1. Mofussil Nijamat Adalat

A court of Criminal Judicature called the Fauzdari Adalat was established in each district. It tried
serious offences including murder, robbery, theft, fraud, perjury etc. This Court was assisted by a
27 

 
  

Kazi or Mufti and two Moulvies who expounded the Mohammedan law of crimes. The Mufti
was supposed to be a person well versed in the Mohammedan Law of crimes and his function
was to expound the law and give 'futwa' after hearing the parties in evidence. But the Collector
exercised overall supervision on the working of the Fouzdari Adalat. He was enjoined to see that
all necessary witnesses were summoned and examined and the decision was fair and impartial in
accordance with the well settled principles of law and procedure.
2. Sadar Nizamat Adalat
A superior court called the Sadar Nizamat Adalat was, established at Calcutta which exercised
control over Fouzdari Adalats. It was presided by an Indian judge known as the Daroga-i-Ada!at
who was to be assisted by the Chief Kazi, Chief Mufti and three Moulvies. These persons were
appointed by the Nawab on the advice of the Governor. The Court was to revise all the
proceedings of the Fouzadari Adalats; and signify its approbation or disapprobation in capital
cases with reasons, and to prepare the sentence for the warrant of the Nizam. The Governor and
Council exercised general supervision over the proceedings of Sadar Nizamat Adalat so that
even handed justice could be ensured without fear or favour. Thus, Fouzdari Adalats were not
empowered to award death sentence, but they were required to transmit .the evidence in capital
cases with their opinion to the Sadar Nizamat Court for final decision. Again, fines over one
hundred rupees were to be confirmed by the Sadar Court, which alone could decree forfeiture or
confiscation of property. The dacoits were to be executed in their own village and the entire
village was fined. The family members of the dacoits were made State-slaves.

Q. 3.  Discuss the composition jurisdiction and working of the Supreme Court 
established in 1774 under the Regulating Act. 1773. How far the objectives behind 
its establishment were achieved? 
Ans. Establishment of Supreme Court Under the Crown's Charter of 1774
In pursuance of the power given by the Regulating Act, 1773, the Crown issued a Charter on
March 26, 1774, establishing the Supreme Court of Judicature at Calcutta. The Charter settled
the various details relating to the Court, and abolished the legal provisions of the Charter of

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1753, which meant the supersession of the Mayor's Court and the Court of Oyer and Terminer
and Goal Delivery.
Composition of Supreme Court
According to Sec. 13 of the Regulating Act, 1773, the Supreme Conn was constituted to be a
Court of Record. It consisted of a Chief Justice and three Puisne Judges to be appointed by the
Crown lo act during the pleasure of the Crown The Charter appointed Sir Elijah Imply as the
Chief Justice, and Robert Clambers, S.C. Le Maistre and John Hyde as the three Puisne Judges
They were Barristers of not less than five years standing, All the Judges were declared to be
Justices of the Peace and Coroners within Bengal, Bihar and Orissa. In authority and
jurisdiction, they were to be in the position of Judges of the King's Bench in England. The
Chief Justice was given a casting .vote. Writs, summons, rules, orders and other mandatory,
process issued by the Court were to run in the Crown's name.
Jurisdiction of Supreme Court the various jurisdictions of the Supreme Court were as
under-
1. Original Jurisdiction in Civil Cases
The Court was authorized to hear, examine, try and determine all civil causes, suits and actions
against
1. The Company,
2. The Mayor and Aldermen of Calcutta,
3. The Crown's subjects who were residents within Bengal, Bihar and Orissa or who
should have resided there or who should have any debts, effects or estate, real or
personal, within the same,
4. Any person who was employed by, or was directly or indirectly in the service of the
Company, or the Mayor and Alderman or any of the Crown's subjects, and
5. Any inhabitant of India residing in the said Provinces if he entered into an agreement
in writing with any of the Crown's subjects that in case of dispute between them, the
matter should be determined in the Supreme Court, provided the cause of action
exceeded the sum of Rs. 500.
2. Jurisdiction as a Court of Equity

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The Supreme Court was to be a Court of Equity in the English legal sense of the word, [t was
given full power 10 administer justice in a summary manner as nearly as might be according, to
the rules and proceedings of the High Court of Chancery in Great Britain. It could issue
Subpoena and other process to compel the appearance and answer upon oath of the opposite
Party, as well as to compel obedience to the decree and order of the Court in such manner and
form and lo such effect as the High Chancellor of Great Britain did.
3. Jurisdiction as a Criminal Court
The Supreme Court was to be a Court of Oyer and Terminer and Goal Delivery in and for the
town of Calcutta, the Fort William and Subordinate factories. In this capacity its authority was
like that of the Justices of Oyer and Terminer and Goal Delivery in England. It has to
administer criminal justice in all cases of grave offences and misdemeanors in such manner and
form or as nearly as the conditions and circumstances of the place and persons admitted of, as
the Court of Qyer and Terminer and Goal Delivery did in England. The Charter provided for
the employment of Grand Jury and Petty Jury, summoned by tine Sheriff,
Composed of the subjects of Great Britain residing in Calcutta.
4. Jurisdiction as an Ecclesiastical Court
The Supreme Court was given ecclesiastical jurisdiction over British subjects residing in
Bengal, Bihar and Orissa, It was to administer and execute ecclesiastical law as used and
exercised in the diocese of London so far as the local circumstances required. The Court might
grant probates of wills and testaments of the deceased British subjects and letters of
administration in regard to their effects if they died intestate or without appointing executors of
their wills.
5. Jurisdiction as an Admiralty Court
The Supreme Court was declared to be a Court of Admiralty for Bengal, Bihar and Orissa to
hear and try all cases, civil and maritime, in the same manner as the High Court of Admiralty
It was given power to try, with the help of a Petty Jury of British subjects residents in the town
of Calcutta, and punish all treasons, murders, piracies and other crimes maritime, committed on
the high-seas, in accordance with the laws and customs of the High Court of Admiralty in
England.

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6. Jurisdiction as to Supervision over Inferior Courts

The Court of Requests, as established in 1753, the Courts of the Quarter Sessions to be held by
the Justices of the Peace, Sheriffs, and other Magistrates were put under the control and
supervision of the Supreme Court in the same manner and form as the inferior courts and
Magistrates in England were under the order and control of the Court of King's Bench.
7. Jurisdiction as to Appeals
A civil appeal might be taken to the King-in-Council. Ft was to be filed within a period of six
months of the delivery of judgment and the matter in dispute was to be over 1,000 Pagodas in
value. Criminal appeals might also be preferred to the King-in-Council, but in respect of them
the Supreme Court was given full power and absolute discretion to allow or deny such appeals.

8. Power to Suspend Execution of Sentence

The Supreme Court was empowered to reprieve and suspend the execution of any capital
sentences in hard cases which presented a proper occasion for mercy and wherein it might be
proper to remit the general severity of the law. The records of the cases with the reasons for
recommending the criminals to mercy were to be transmitted to the King-in-Council for
consideration.
Immunity Available to Councillors and Judges
The Governor General, the Councilors, the Chief Justice and ihc Judges of the Supreme Court
were not liable to be arrested or imprisoned in any action, suit or proceeding except in cases of
treason or felony.
Merits
The merits of this court are as under—
1. The Supreme Court judges were professional lawyers, sent from England appointed by
crown and holding their post during its pleasure. Thus, judges had knowledge of English law
and could deal with the cases effecting life and property of the people.
2. The tenure of the judges was independent from the wishes of company of Calcutta
Government this-gave independence to judiciary.

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3. for the first time judiciary was divorced from the executive. Thus, legality of administrative
action of the company's servants could be judged by the legal norms.
4. Jurisdiction of civil and criminal courts of 1753 was confined to the limits of Calcutta and
could not thus lake cognizance of cases arising in Bengal, Bihar and Orissa. The Englishman
residing in these territories being beyond their jurisdiction could commit crime with impunity.
This major defect was removed by the formation of this court.
5. The Supreme Court was simultaneously a Court of Law as well as a Court of Equity
And having different kinds of jurisdiction as admiralty and ecclesiastical. In this way it
Was a great improvement of judicial system prevailing even in England at that time?
6. The Supreme Court was to have powers to supervise and control over the company's
Courts and had powers to issue writs.

Defects
In spite of the above mentioned merits, the Supreme Court, had many defects, i.e.,
1. Vague Jurisdiction of Supreme Court
Provisions of Regulating Act in relation to Calcutta were specific, whereas relating to Bengal,
Bihar and Orissa; they were quite vague and uncertain. The Act distinguished between Calcutta
on the one hand and Bengal, Bihar and Orissa on the other hand. Similarly, specific powers for
administration and legislation regarding Calcutta were vested in Governor-General-in- Council
but no such specific powers were vested in relation to Diwani territory.
Therefore, it was very doubtful as to whether the powers of Supreme Court extended to Diwani
territory or not.
2. Vague Provisions of Law to be Applied by Supreme Court
Certain terms like 'British Subjects', 'Subjects of His Majesty', 'Subject of Great Britain, of us
and our heirs', which were used to define jurisdiction of Supreme Court were not defined
Clearly.
3. Conflict Between the Executive and Judiciary
Supreme Court was given power to examine the legality of the Diwani Acts of the 'company's
servants' or 'His Majesty's subjects' or persons 'directly or indirectly in the service of the

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company' whereas council was of the view that activities relating to revenue collection do not
come under court’s jurisdiction. Unfortunately provisions of the Act did not make clear as to
whether 'Management etc. of revenue vested in council or not. Provisions relating to relations
between Supreme Court and Governor-General and Council were uncertain. The
Governor-General and Council were of the opinion that they were beyond the jurisdiction of
the court, their act whether official or individual cannot be questioned in the court. On the other
hand, court took cognizance to their official and individual acts. This anomaly made relations
of both of these two distasteful.
4. Conflict Between the Supreme Court and Company's Court
Because of establishment of Supreme Court two independent and parallel judicial system came
into existence, Adalats in Diwani territory and Supreme Court at Calcutta. There was
no mutual relationship between the two, therefore, conflict between the two systemsbecame
inevitable. Patna and Kamaluddin Cases are the examples of this conflict.
4. Harshness of the Procedure
Creation of Supreme Court gave rise to the difficulties for Indians residing in Bengal, Bihar and
Orissa, the court was out of harmony with the mode of life, traditions and manners of Indians.
This created dissatisfaction among these people. Supreme Court followed the technical English
common civil procedure. A very objectionable feature of this procedure was arrest on 'manse
process'. This again gave rise to host of difficulties for Indians residing in Bengal, Bihar and
Orissa.

Q. 4. Discuss the Regulating Act of 1773?

Ans.
Introduction
The Enactment of the Regulating Act of 1773 and the Act of Settlement were two major
enactments in the Indian Legal History. The Regulating Act of 1773 was the first Act to bring
in major changes in the administration and justice. Then, late on, the Act of Settlement in the
year 1781 was enacted to remove the flaws of the earlier passed Act.

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The Regulating Act, 1773

There were many circumstances that made it necessary for the enactment of the act. It was the
first direct interference of the British Government in the regulation of the affairs of the East
India Company.
1. Firstly, the concept of the dual form of administration instituted by Robert Clive was
complicated and brought trouble to the people of India. Under this system, the company
had Diwani rights in Bengal and the Nawab had Nizamat rights (judicial and policing
rights). Behind the curtains, Nizamat rights were also in the hands of Company as the
Nawab acted as an agent of the company. This all only laid to the suffering of the
people as they were being exploited by both the Nawabs and the Company.
2. Secondly, the plight of the people was when there was a terrible famine in Bengal
where a huge population perished.
3. Thirdly, a major reason for the enactment of this Act was the financial crisis that arose
in the company by 1773 and the company had asked for a loan of one million pounds
from the British Government in the year 1772.
4. Fourthly, the company through earlier charter had only been given trading rights by the
British Parliament. But, slowly and slowly, as it started acquiring more and more
territory it started acting like a ruling body. And, there in England, the British
Parliament couldn’t swallow this situation. And, to put end to this tendency of company
i.e. using the political powers in the name of trading rights, the company thought it was
necessary that these territories should be brought under the control of Crown.
5. At, that time there existed three presidencies of Bengal, Madras, and Bombay in the
country. But, all these three towns were independent of each other and there no
centralized authority in India to control them. Thus, it became necessary to bring
uniformity in the administration of these three towns.
These all circumstances forced the British government to pass the Regulating Act of 1773 in
order to regulate the affairs of British East India Company.
And, accordingly, Lord North (Prime Minister of England at that time) decided to revamp the
affairs of the East India Company with the Regulating Act. And, so in May 1773 Lord North

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presented a bill in the British Parliament which when passed was known as ‘Regulating Act of
1773’. An interesting point to note here is that by this acting the, British Parliament only
‘regulated’ the affairs of the company but, didn’t take all power completely to itself.

The Aim of the Act

The basic objectives of implementing the Regulating Act of 1773 are listed below.

1. To control and regulate the affairs of East India Company

2. To remove the political power from the hands of the Trading Company
3. To recognize the political and administrative power of the Company
4. To provide new administrative reforms which were to provide a Central Administration
System
5. To improve the despotic state of affairs (situation) of the company
6. To sort out the chaos created by the introduction of the system of dual government
7. To bring anti-corruption practices via the medium of the act by prohibiting the servants
of the company, from engaging in any form of private trade and from accepting bribes,
gifts, and presents from the people.

Provisions of the Act (Major features)

This was the first step taken by the British Parliament to interfere in the administration of the
company, directly. The key features of the have described in the following paragraphs.

1. Introduction of the office of the Governor-General of Bengal

The office of the Governor of Bengal was redesignated as the Office of the Governor of the
Presidency of Fort William, also known as Governor-General of Bengal. Lord Warren Hastings
was the first person to hold this designation.

2. Creation of Executive Council to Assist the Governor-General

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Also, the Executive Council of four members was created to assist the Governor-General.

3. Governors of Bombay and Madras presidencies subordinate to the

Governor-general of Bengal
The Governors of Bombay and Madras were made subordinate to the Governor General of
Bengal, thereby making the Governor General of Bengal as the ultimate authority.

4. Establishment of the Supreme Court at Judicature at Fort William

In the year 1774, Supreme Court of Judicature at Fort William was established at Calcutta with
one Chief Justice and three other judges. The jurisdiction of this court extended to all areas
lying under the Bombay, Madras and Bengal Presidency. It was a Court of Record and its
power extended to try both Civil, Criminal cases (only over the British subjects not on natives)
as well as it had jurisdiction over admiralty cases. Judges were to come from England. The first
Chief Justice of the court was Sir Elijah Impey.

5. Reforms to curb corruptions

This act brought prohibition on the servants of the company from engaging in any private trade
or accepting bribes and gift from the local people.
• The directors of the company were to be elected for a period of five years and
one-fourth of them used to retire every year. There was no procedure for re-election available.

Short Questions

Q.5. Explain the main Provisions of the East India Company Act. Or Pitt’s
India Act. 1784?
Ans. East India Company Act or Pitt's India Act, 1784

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The Pitt's India Act, 1784 was passed to place the company under the direct control of a body
representing the British Govt. The main provisions of Pitt's India Act were as follows:
1. Establishment of Board of Control
The Act established a Board of control which consisted of the Chancellor of the Exchequer and
one of the Secretaries of State and four other members 'of the Privy Council. They were
appointed by the King and held office during his pleasure. The quorum of the Board was fixed at
three. The presiding officer had a casting vote. They had power to superintend, direct and control
all acts and operations which in any way related to the civil or military Government or revenues
of the British territorial possession in the East India. The Directors of the company were bound
to obey all orders and directions of the Board.

2. Establishment of a Secret Committee

A secret committee consisting of three Directors was formed. The Board of Control was also
empowered to send secret directions to such secret committee to transmit them to India without
disclosing their contents to other Directors.
3. Reduction of the Strength of the Governor's-General -in-Council
The number of members of the Governor-General-in-Council was reduced to three. The
Commander in- Chief of the Company's forces in India was to be one of the members. The
Government of the Presidencies of Madras and Bombay were to consist of a Governor and three
councilors. The Commander-in-Chief of the Presidency was to be one of the councilors except in
a case where the Commander-in-Chief of the Company's forces in India happened (o be in the
Presidency, and in such a case he was to be a member in place of the local Commander-in-Chief.
The Governor-General had a casting vote.
4. Acceptance of Gifts etc. were Prohibited
Acceptance of presents by any person in the employment of the Company or the Crown was
made punishable. The servants of the Company were required to declare on oath the account of
property, they had brought from India. All the British subjects were made subject to the
jurisdiction of the courts in India.
5. Establishment of a Special Court

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A special court consisting of three judges, four peers and six members of the House of Commons
was constituted to try in England any offence committed in India. This, act continued to be in
force up to 1858 but in 1786 some of its provisions were amended.  
 
 
 
 
 
Q. 6. Write a critical note on Cossijururah Case?
Ans. Cossijurah Case

One Cossinaut Baboo had lenla large sum of money to the Zamindar or Raja of Cossijurah. He
had tried in vain to obtain this money through the Board of Revenue at Calcutta. He therefore,
sued the Raja in the Supreme Court and filed an affidavit in August 1779 which stated that the
Raja was employed in the collection of revenue and was therefore amenable to the Court's
jurisdiction. The Collector of Midnapore, in whose district the Raja resided, informed the
Governor-General-in- Council about this development and said that the Raja was hiding himself
in order to avoid service of the writ to a great loss of the revenue. The council, after having
obtained the opinion of the Advocate-General, issued a notification to all landholders informing
them that they were under no obligation to pay any attention to the process of the Court unless
they were servants of the Company or had subjected themselves by their own consent to the
jurisdiction of the Court. A special direction to the same effect was issued to the Raja of
Cossijurah, who thereupon took no notice of the further process of the Court. His people drove
away the Sheriff and his officers when they tried to arrest him under the writ of capias. The
Supreme Court, thereupon, issued another writ to sequestrate the property of the Raja to compel
his appearance. Seized the person of the Raja violently, outraged the sanctity of the family idol
and broke into the Zaiiana. In the meanwhile, the English Commander of troops at Midnapore
marched with a force of sepoys against the Sheriffs party and arrested them in execution of the
orders of the Governor- General-in-Council. Tine process to arrest the Commander for contempt
was also prevented by military force.
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At last Cossinaul Baboo brought an action for trespass against Warren Hastings and members of
the Council individually. At first they entered appearances but when they found that they were
sued for acts done by them in their official capacity, they withdrew and would not submit to any
process of the Court against them. The Council made an announcement to all persons in Bengal
out of Calcutta that they were not to take any notice of the process of the Court; if the Court
attempted to enforce its process, the Council would prevent it by military force. . In this case the
action of the Council has been criticized as quite illegal and most violent without any
justification, but it is natural and intelligible. The councilors hated the Supreme Court. It
represented an authority which the servants of the Company practically repudiated. It represented
English law which again they hated both for its defects and merits. It was a matter of great
grievance to Item that the Zamindars should be interfered with if, in order to pay the revenue
punctually, they squeezed their riots in a way which she English lawyers regarded as oppressive
or extortionate. Though not sure, they thought that the Court violated the Regulating Act by
acting beyond the jurisdiction given to it. To be sure, the best course open for them was to have a
ruling from the Court and to test its correctness by an appeal to the King-in-Council. But they
adopted a simpler course; they had the military force in their hands as well as the public feeling
and preferred to use that force. According to J.F. Stephen this was a wrong position according to
certain historians.

Q. 7. Explain the main provisions of the Act of Settlement, 1781. Also give
critical appreciation of this Act?
Ans. The Act of Settlement
The Act of Settlement was an Amending Act of 1781, which was passed by British Parliament
on 5th July 1781 to remove the defects of the Regulating Act 1773. It is also known as
Declaratory Act, 1781.
Circumstances that led to the passing of Act of Settlement
1. Though the Regulating Act of 1773 brought a great level of change both in the regulation
of affairs and judiciary, there were some significant loopholes which this act failed to

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resolve. Basically, to remove the defects of the Regulating act of 1773, the Act of
Settlement 1781 was enacted.
2. Firstly, some serious issues with the administration of the Warren Hastings were there.
The relevant examples of such issues are Patna case, Cosijurah Case and particularly the
Nand Kumar case where (Nand Kumar was hanged). These all issues led to a lot of
criticisms of administration of Warren Hastings.
3. Secondly, there was a big tussle between the Supreme Court and Governor-General in
Council which disturbed the balance of administration to a great extent.
4. Also, there was interference in the personal laws of the communities which had agitated
the people.
Also, in the year 1777, a complaint was made by the directors of the company against the
Supreme Court as for them it was difficult to run the administration. To address this complaint,
the House of Commons, appointed a committee known as Touched Committee to a do an inquiry
about the administration of Bengal, Bihar, and Odessa.
The report of this committee led to the enactment of the Act of Settlement of 1781.

The Aim of the Act

The main objectives of the enactment of this Act were:
1. To remove ambiguity regarding the few provisions of the Regulating Act and the Charter
this had created the division between the court and the government.
2. To support the lawful government of Bengal, Bihar, and Orissa, so that revenue could be
collected smoothly.
3. To maintain and protect the laws and customs of the native people.

Provisions (features) of the Act

The Act had the following features:
1. Change in the powers of the Supreme Court
The servants of the company which earlier came within the jurisdiction of the Supreme Court
were now exempted from the jurisdiction of the Supreme Court.

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By the enactment of this Act, the court’s geographical jurisdiction became limited to only
Calcutta.
2. Non-interference in Revenue matters
The court now had no jurisdiction in the revenue matters concerning revenue, or any act was
done in the collection thereof, the government now became independent of the control of the
court in the matter of revenue.
3. The Shift of Appellate Jurisdiction from Court to the Governor-General and Council
The Appellate jurisdiction shifted in the hands of the Governor-General and Council. Now, the
appeals went from Provincial Courts to the Governor-General in council.
4. The Assertion on the application of the personal laws
This act asserted that Mohammedan law should be applied on the Mohammedan cases and
similarly, the Hindu law must be applied to Hindu cases.
Impacts of the Act of the Settlement
The major impacts of this act were:
• The act gave superior authority to the council over the court and favored the council.
• This act made the position of the council very strong so that it could continue to have a
good control over the Indian empire.
• It was the first attempt to separate the executive from the judiciary by defining the
respective areas of jurisdiction.
Still, the Act failed to give a vibrant impact and to remove all the flaws of the Regulating Act of
1773.
Conclusion
These to enactment brought many great changes to the system of administration and justice. it
can also be concluded that the Regulating Act of 1773 laid the foundation of the Central
Administration and Parliamentary Control. But, there were also some drawbacks to both the acts
which can’t be ignored.

Q.8. Write the Short Note Nanda Kumar Case?

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Ans. Nanda Kumar Case

• Raja Nanda Kumar, he was residing in Bengal and was big Zamindari.
• In March, 1775 he laid a letter before the Councilmember with charging allegation against
Warren Hastings
• According to the letter Warren Hastings received bribe from former Nawab wife Munni Begum
for granting a Zamindari.
• Immediately council members they arranged meeting to issue summons to Nanda Kumar to
attend before council to produce vouchers in support of his charges of bribery against Hastings
With the summons of Council, Nanada Kumar produced a letter in person which was written to
him by Munni Begum.
• The council majority decided that Hasting received a sum of Rs.3,45,105 as bribe and directed
him to refund the money in the Company’s treasury.
• While charges against Warren Hastings were still in pending which were subsequently
dropped.
• Nanda Kumar was suddenly arrested at the instances of a Calcutta merchant Mohan Das on a
charge of forgery.
• He was also implicated in a case of conspiracy when in the absence of proof was dropped.
• He was put on trial before the Supreme Court presided over by the Sir Elijah Empery on the
charges of forgery.
• The trial began on 7thJune 1775 and continued for a period of eight days without any
adjournment.
• On the basis of Mohan Prasad evidence, the verdict of guilty was returned by the jury and Raja
Nanda Kumar was condemned to death.
• Under the statute passed by the British parliament in1729.
• The death sentence was duly executed on 5thAugust 1775.
Peculiar features of trail
• Change preferred against Raja Nanda Kumar was shortly after he had leveled charges against
Warren Hastings.
• Chief Justice Imply was a close friend of Hastings.

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• Every Judge of the Supreme Court cross examined the defense witness due to which the whole
defense of Nanada Kumar collapsed.
• After the trail, when Nanda Kumar was held guilty by the court he filed an application for
granting leave to a peal to the King-in-Council but the court rejected his application.
Nanda Kumar committed the offence of forgery nearly five years ago, i.e. much before the
establishment of Supreme Court.
• Neither under Hindu Law nor under Mohammedan Law was forgery regarded a capital crime.

Q. 9. Write the Short Note on Patna Case?

Ans. Patna Case 1777-1779

• Shahabad Beg Khan, native of Kabul came to India and settled down in Patna.
• He married Nadirah Begum and acquired a large amount of money while in the service of
company.
• He had no issue, therefore he invited his nephew Bhadur Beg from Kabul to reside with him the
intention to adopt him. But before he could do so he died in December, 1776.
• Bahdur Beg took the first step and filed a suit against the Begum in the Patna Provincial
Council for getting right over the property.
In the provincial Court the case placed before Mohamdan law officers.
• The officers after full hearing reported to the council that gift deeds were forged documents and
no gift was made in favor of Nadirah Begum by deceased.
• They also reported that the nephew, Bahadur Beg court not be adopted under Muslim law.
• Therefore, recommended that property be divided in to four parts out of which three parts were
to be given to Bahadur Beg on the basis of consanguinity (relationship by blood) and also heir of
the diseased and the fourth part be given to the widow.
• Nadirah Begum was dissatisfied with the decision of the provincial Council, and she filed an
appeal before the Sadar-Diwani-Adalat at Calcutta.
• Due to their busy routine work they could not considered the matter for a long time.

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• With indifferent approach of the court, she filed a suit in the Supreme Court against Bahedur
Beg, Kazi and mufti for assault, battery, unlawful imprisonment and claimed 6lakhs as damaged.
• The Supreme Court issued ordered to arrest of Bahadur Beg, Kazi and mufti.
• The Supreme Court decided that the documents were genuine and that Kazi and mufti did not
act in good faith.
• The court awarded the damages of Rs.3,00,000 in favor of Nadirah Begum and the law
officers were imprisoned.
• The whole case was bitterly criticized on the grounds that which law Bahadur Beg and law
officers were subjected to the jurisdiction of the Supreme Court.
• The Supreme Court justified his jurisdiction over Bahadur Beg as a former and paying land
revenue to the company.
• Both the parties were Muslims to which the Mohammedan Law of inheritance was to apply; it
was purely a matter of personal law to Mohammedan.
• There were no written agreements between the parties to submit the case to the Supreme Court
for a decision.

Very short Questions

Q.10. What do you mean by Mofussil Faujdari Adalat?

Ans. Mofussil Faujdari Adalat

It was a court of criminal jurisdiction established in each district. The court was presided over by
Kazi, helped by Mufti and Maul vies. The collector had a general supervision over the court. I he
court had the full power to decide and punish all criminal cases. However, in causes of forfeiture
of property or of death sentence the proceedings of court had to be submitted to the Sadar
Nizamat Adalat for final orders.

Q.11. What do you mean by Mofussil Diwani Adalat?

Ans. Mofussil Diwani Adalat

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It was a court of civil jurisdiction established in each district. The Collector was the judge of this
court. In the suits regarding inheritance, marriage, caste and other religious usages and
institutions, 'the laws of the Koran with regard to Mohammedans, and those of the Sharster with
respect to the Hindus," were to be applied. The Collector, in matters of Hindus and Muslims was
helped by Pundits and the Kazis respectively who expounded the law.

Q. 12. Why British Parliament passed the Regulating Act, 1773?

Ans. Regulating Act, 1773

Object of Passing the Regulating Act, 1773

British Parliament enacted the Regulating Act, 1773 in order to achieve the following purposes:
(a) To impose greater control and supervision of Parliament over the affairs of the East India
Company,
(b) To democratize the structure of the East India Company itself,
(c) To streamline the administration of India by East India Company,
(d) To establish a Supreme Court at Calcutta,
 

Q. 13. What were the effects of the passing of the Regulating Act on judicial
system in Bengal?
Ans. Effects of the Regulating Act on Judicial System in Bengal
These are as under—
1. A Governor-General and a Council of four members was set up at Calcutta. All civil and
military affairs of the Calcutta Presidency were vested in this authority. Warren Hastings was
appointed the Governor- General.
2. The Presidencies of Madras and Bombay were put under the lupcriutendenoc of the Calcutta
Presidency or the Governor General and the Council in matters of war and peace,

45 

 
  

3. The decisions of the Council were to be abided by the Governor-General who had only one
vote and one casting vote in case of a tie. Thus, the Council had a superior authority over the
Governor-General.
4. The Governor-General and the Council was vested with the power of ordering management,
and government of all territories, acquisitions and revenues in the kingdoms of Bengal, Bihar and
Orissa,
5. Creation of Supreme Court Sec. 13 of the Regulating Act provided for the creation of the
Supreme Court of judicature at Calcutta.

Q. 14. Fox’s East India Bill, 1783?

Ans.                    Fox’s East India Bill, 1783

Mr. Fox introduce a bill Know as the Fox introduce a bill knows as the Fox’s East India Bill
suggesting complete alteration in the constitution of the Company as the existing distribution of
powers between the Government, the Court of Directors and the Court of Proprietors wholly
unsatisfactory and led to confusion and anarchy. For proposed to tighten up Parliament’s control
on the Company’s management at home (i.e; England) and on its officers in India.
Fox’s Bill proposed to abolish the company’s Court of proprietors and the Court of Director and
place the company under a Board of seven Commissioners wit power to appoint and remove
officers in India and administer the territories, revenue and commerce of the Company.

Q. 15. What do you mean by Recorder’s Court?

Ans. Recorder’s Court 1798

The Recorder’s Court was established in 1797. The Recorder’s Court consisted of a Mayor, three
Aldermen and a Recorder. They were in the form of old Mayor’s Court except the addition of
one Recorder to each court who was appointed by the Crown. The Recorder was a man learned
in the laws of England and he presided over his court. They had civil, criminal, ecclesiastical
admiralty jurisdiction. They had power to try all suits tried by the Mayor’s Courts. The
jurisdiction of the Recorder’s Court extended over British subjects who resided in the British

46 

 
  

territories of Madras and Bombay or within the territories of Native Princes having alliance with
the Government of Madras and Bombay. The restrictions imposed by the Act 1781 on the
Supreme Courts were made applicable to the Recorder’s Court also.

Q. 16. What do you mean by Justice of Peace?

Ans. Justice of Peace
The Justice of Peace were first established in the presidency- towns by the by the Crown’s
Charter of 1726. Which were appointed by the Governors and members of their Council in their
Council in their places to act Justice of the peace with power to hold Quarter Sessions? The
object was to introduce a purely English system for the advantage of English and other servants
of the Company. The Justices Of The Peace were off to descriptions:
1.) Those who by virtue of the office, were empowered to act in that capacity under the
immediate authority of Parliament and,

2.) Those who were appointed by the government in India under Commissions issued in the
name of the Crown. The law relating to both the descriptions of the Peace prior to the passage of
the High Court’s Act 1861.
    

UNIT – IIIrd

Long Questions

Q. 1.Discuss the First Law Commission in India. What were the provisions of the
report of the First law Commission?
Ans. Law commission

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It was laid down by the Charter that to constitute the Indian Law Commission, the Governor
General and Council should issue commission to such persons as the court of directors shall
recommend, but their member should not exceed five at one time. The Law Commission were
required to inquiry in to the jurisdiction, powers and rules of the existing court of justice and all
existing forms of judicial procedure and into the nature and operation of all laws, whether civil
or criminal, written or customary. In the report they were to give result of their inquiries and
suggest the alteration.
First Law Commission Introduction
In pursuance of the authority conferred by Sec. 53 of the Charter of 1833, the first Law
Commission was appointed in India in 1834. The commission consisted of Lord T.B. Macually,
as chairman and 4 members namely, C.H. Cameron, J.M. MacLeod, G.W. Anderson and F.
Millet. The first 3 members represented Madras, Bombay and Calcutta respectively. The
commission met in India in 1834 for the first time. The said Charter placed the first Law
Commission wholly under the control of the Governor-General-in-Council which determined
from time to time the subjects, upon which the commission shall proceed to work and submit
reports. Accordingly, the commission was assigned the following tasks:
1. Codification of penal law;
2. The law applicable to non-Hindus and non-Muslims in respect of their various rights (Lex
Loci Report);
3. Codification of civil and criminal procedural law etc.
1. Codification of penal law (Draft Penal Code)
As the system of administration of criminal justice was most unsatisfactory, the local
government directed the commission to take its first step to tackle this branch of law. The
members of the commission prepared a draft penal code which they submitted to lord Auckland,
the Governor General on 2th May, 1837. It could not be immediately enacted into a code and had
to wait up to 1860 due to the following reasons:
(a) The substantive civil law and the law of procedure were dark and confused;
(b) The illness of two members, threw the work on Macaulay. This draft of I.P.C was mainly
the work of Lord Macaulay and on account of it; it is called “Macaulay's Code”. Thus the draft

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code became law in 1860, and the said code is still continuing in the country for the
administration of criminal justice.
2. Lex Loci Report
Another important subject to which the commission was required to devote its attention was the
problem of uncertainty of the substantive civil law which was applicable to the Christian's,
Anglo-Indian's and Armenian's. There were no lex-loci or law of the land for non-Hindus and
non-Muslims residing in mofussil areas. However, there was law for those non-Hindus and
non-Muslims who inhabited in presidency towns. There was a lot of uncertainty with regard to
the civil law applicable to the Christians, Anglo-Indian's and Armenian's residing in the mofussil.
Thus, the attention of the first Law commission was directed to this problem in 1837. The first
Law commission after careful study and consideration submitted its report on 31st Oct. 1840 to
the Government. The first Law commission submitted its report under the chairmanship of
Andrew Amos and recommended that an Act should be passed making the substantive law of
England the lex-loci, the law of the land outside the presidency towns in mofussil areas and
which shall be applicable to all except Hindus and Mohammedans. While applying the
substantive law of England certain restrictions were imposed and they are:
1. Only those laws were to be applied which were to be suitable¬ to the conditions prevailing in
India;
2. The English law not to be opposed to any regulation of any¬ presidency;
All questions concerning marriage, divorce and adoption¬ concerning persons other than
Christian's were to be decided by the rules of the sect to which the parties belonged;
3. Rules of equity as applied in England were to override the¬ substantive law of England.
Thus the first Law commission submitted a draft bill on 22th May 1841 to the Government. The
lex-loci report of the first Law commission was sent to all the presidencies in India for their
opinion. But it was first halted by the preoccupation of Lord Auckland and secondly it received
criticism.
In the meantime the directors ordered not to pass any law for declaring lex-loci and the matter
remained pending until IInd law commission was appointed. However, one portion of the
lex-loci report of the first Law commission was implemented was “The Caste Disabilities

49 

 
  

Removal Act, 1850”. This piece of legislation had immense effect on the Hindus and Muslims
who were not to lose now any interest in property merely by their conversion to other religion.
3. Civil Procedure Code
The commission drafted a code of civil procedure and suggested various reforms in the
procedure of civil suits.
4. Law of Limitation
The First Law commission drafted a valuable report on the law of Limitation and with a draft bill
on it, submitted it to the Government on 26th Feb, 1842.
5. Stamp Law
Another matter referred to the commission was stamp laws which were in a state of conflict and
confusion. The commission submitted its report on 20th Feb, 1837. It was till 1860 that a
comprehensive law relating to stamps was passed for the whole of British India.
6. Other Digests and Guides
While the draft codes prepared by the first Law commission were being discussed, several
Digests and Guides were published in India.
Contribution of the first Law commission
Although any effective results could not be obtained from the first Law commission’s report yet
it served a very useful purpose by exposing the uncertainty of law in the country. The
commission’s report successfully attracted the attention of the people in this country of the
complex problems of the legal system.

Q. 2. What were the reports and Achievements of the Second, Third and Fourth
and Fifth Law Commission?
Ans. Second Law Commission
Under the provisions of the Charter Act of 1853, the second Law commission was appointed in
England on 29th Nov. 1853. The second Law commission was composed of the following
persons - Sir Edward Rayan, Robert Lowe, Lord Sherbooke, V.H. Cameron, J.M. MacLeod and
T.F. Ellis.
Task Assigned to second Law commission

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The task entrusted to the commission was to examine and consider the recommendations of the
first Law commission and enactments proposed by it, for the reform of the judicial
establishment's, judicial procedure and laws of India. The life of the second Law commission
was fixed for three years, which was to expire in 1856. Section 28 of the Charter Act, 1853
authorized Her Majesty to direct the commission to submit reports on these Matters and every
such report was to be submitted within a period of three years after the passing of this Act.
Reports
The second Law commission submitted four reports to the Indian Government. The first report
was submitted in 1855, second, third and fourth reports were submitted in 1856.
First Report
In the first report, the commission submitted a plan for reforms in judiciary and in courts
procedure.
Second Report
In its Second report the commission agreed with the lex-loci report of the first Law commission.
It suggested that there must be a substantive civil law for persons in the mofussil who had no law
of their own. The second Law commission expressed the firm view that no attempt should be
made to codify the personal laws of the Hindus and Mohammedans - because any such attempt
“might tend to obstruct rather than promote the gradual process of improvement in the state of
population”.
Third and Fourth Report
In these two reports, the commission submitted a plan for the amalgamation of the Supreme
Court and Sadar courts and a uniform civil code of civil and criminal procedure applicable both
to the High Court's to be formed by that amalgamation.
Achievements of the second Law commission
The recommendations of the commission resulted in important legislation’s e.g. i. The penal
code proposed by Macaulay was taken up, revised and finally passed in the year, 1860; ii. Codes
of civil procedure and criminal procedure were passed in the year 1859 and 1861 respectively;
iii. The draft on the law of Limitation as submitted by the first Law commission was also taken
up and passed into law in 1859.

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Third Law Commission

On 2nd Dec. 1861, Third law commission was appointed under the chairmanship of Lord
Romilly. The commission consisted of six members - Sir W. Erle, Sir Edward Rayan, Lord
Sherbrook, Robert Lowe, J.M. MacLeod and J. wills. Later on retirement of Erle and Wills their
place in the commission was taken up by W.M. James and John Henderson and on death of
Henderson, Lord Lush succeeded him. This phase become famous as “The Golden Age of
Codification”.
Task Fixed for Third Law Commission
Firstly, the third Law Commission was appointed with the purpose “to prepare for India a body
of substantive law and in preparing the same law of England should be used as a basis, but which
once enacted should itself be the law of India on the subject it embraced”.
Secondly, the third Law commission was also charged with the duty of considering and reporting
on such matters relating to the reforms of the laws of India as might be referred to them by the
Secy. of State.
Thirdly, the commission was requested that the result of their labour on one branch of civil law
should be reported before they began their deliberations on another branch, as the plan of
successive report's on the various departments of law would greatly facilitate the necessary
measures which must be taken up in India for giving effect to the recommendations of the
commission.
Reports
The Third Law Commission submitted Seven Reports-
The Indian Succession Bill, The Contract Bill, The Negotiable Instruments Bill, The Evidence
Bill, Transfer of property Bill and Revised Draft of Criminal Procedure.
Achievement of Third Law Commission
The Third Law Commission submitted draft of six major pieces of legislation within a short span
of nine years, which was tremendous achievement. But the commission unfortunately came to an
end on an unhappy note in 1870 due to strained relation between the commission and the
Government of India.
Fourth law commission

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Though many important branches of law had been codified so far, still some remained
un-codified. Thus, in 1875, Lord Salisbury, the Secy. of State for India, called the attention of the
Government of India about the urgent need for the appointment of a law commission. Later, in
1877, the Government of India, while accepting the proposals of Lord Salisbury, entrusted Dr.
Whitely Strokes with the preparation of bills dealing with Private Trusts, Easement, Alluvion
and Dilution, Master and Servant, Negotiable Instruments and Transfer of Property Act. Thus, on
11th Feb, 1879, these bills were referred to the Fourth Law Commission for consideration and
report. The commission submitted its report on 15th Nov. 1879. In its only report, the Fourth
Law Commission made the following recommendations-
1. The process of Codification of substantive law's should continue;
2. The English law should be made the basis of the future codes in India and it's material should
be recast;
3. The eventual combination of those divisions as part of a single and general code should be
borne in mind;
4. The law of actionable wrongs should be codified;
5. Uniformity in legislation should be aimed at, but local and special customs should be treated
with great respect;
6. In re-casting English materials due regard should be had to native habits and modes of
thought. The form and proposition of codes should be broad, simple and readily intelligible;
7. The legislature should then deal with the law of property in its whole extent;
8. Existing law of persons should not be expanded at present by codification except that the
operation of the European British Minors Act, 1874 should be extended;
9. Preparation should be made for a systematic chapter on interpretation;
10. The laws relating to the Private Trusts, Easement, Alluvion and Dilution, Master and
Servant, Negotiable Instruments and Transfer of Property Act should be codified and bills
already prepared should be passed into law subject to suggested amendments;
11. Concurrently the laws relating to Insurance, Carries and Lien should be codified.
Thus, the legislative Council of India on the recommendation of the law commission passed
codes relating to Negotiable Instruments in 1881 and those relating to Trusts, Transfer of

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Property and Easement's in 1882. The law of civil wrong (Torts) was not codified though Indian
civil Wrongs Bill was prepared and till today this area is un-codified and is mostly covered by
English law of Torts.
Thus, with fourth law commission came to an end the phase of law commission's and no more
law commissions were appointed thereafter during British period.

Permanent Law Commission

After the Indian Independence in 1947, many colonial laws needed a thorough revision
consequent to the changed conditions of India. Some efforts were made in this direction but it
goes to the credit of Sir Han Singh Gaur, who moved a resolution in the Legislative Assembly in
December, 1947 suggesting the establishment of a statutory ‘Law Revision Committee’ to
review the position of laws. The resolution was, however, withdrawn subsequently on the
assurance from Dr. B.R. Ambedker, the then Law Minister, who proposed to set up a permanent
Law Commission for this purpose. Thereafter, on July 26, 1954, the All India Congress
Committee passed a resolution to set up a Law Commission to look into the modernization of
laws. On November 19, 1954, a non-official resolution) was moved in the Parliament for the
appointment of a permanent law Commission for revision and modernisation of the Indian
substantive and procedural laws. Accordingly, the then Law Minister, Shri C.C. Biswas made a
declaration in the House on August 5, 1955 announcing the appointment of a Law Commission.
(vi)The existing pattern of three years tenure of the members of Law Commission including its
Chairman may be enhanced to five years so as to provide it more stability and sufficient time to
implement its proposals and analyse the outcome thereof.

Q.3. what were the two rival sets of judicial institutions before the passing of the
Indian High Court Act of 1861? How do they differ from each other?
State briefly the changes affected by the High Court Act, 1861.

Ans. Judicial System in India Ensiling Before, 1861

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Prior to the passing of the Indian High Courts Act, 1861, there were two rival sets of judicial
institutions in India, namely (he Crown's Courts and the Company Courts. The Supreme Courts
established in the Presidency towns of Calcutta, Madras and Bombay were the courts of the
British Crown while the Adalats established in the Mofiissil areas were the courts of the East
India Company. The courts had two different sets of organizations jurisdiction and powers. The
functioning of courts in the Presidency towns was differed I from that of the Mofussils of which
they were the capitals. The existence of two parallel sets of courts viz the Supreme Court and the
Sadar Adalats in the Presidency towns created great confusion and uncertainty about their
respective jurisdictions,
Distinction between the Crown's Court and Company's Courts
The two sets of Courts differ in the following respects:
1. The Supreme Court consisted of professional lawyers as Judges Bill the Judges of the
Company's Adalats were mostly Jay persons without any professional or legal experience.
2. The Judges appointed in the Supreme Court held office during Crown's pleasure whereas the
Judges appointed in Company's Adalats held office during Company's pleasure.
3. There was no hierarchy of courts in Crown's Court but there was a regular hierarchy of civil
arid criminal courts in the Company's judicial arrangement.
4. The laws applied by the two sets of court were different. The Supreme Court applied English
law in deciding civil and criminal cases. The Company's Courts applied native laws for deciding
the cases relating to inheritance, succession and contract etc.
5. The Supreme Court mostly followed English law of evidence as far as possible
Whereas the Company's Courts mostly followed the customary Jaw of evidence as
Derived from Hedaya and applied Anglo-Mohammedan Jaw in deciding criminal cases. Thus, it
is clear that there existed two different and parallel judicial systems which differed
fundamentally from each other; in character and nature. This system continued up to 1857 when
Indian freedom struggle took place in 1858. In 1858 Government of India was taken over by
Crown who in 1861 united two judicial systems into one by enacting Indian High Courts Act,
1861.
Necessity for Passing the Indian High Court Act, J861

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The uncertainty about the jurisdiction and the law applicable by these two sets of courts created
conflict and confusion. Therefore, it was necessary to merge these courts into one single judicial
system. In 1829, Sir Charles E. Grey, the Chief Justice of the Supreme Court at Calcutta
emphasized the need for the fusion of these two rival courts functioning in the Presidency towns.
The need for the amalgamation of these courts was further highlighted by Sir Metcalfe. The
process of unification was, however, completed in three distinct phases viz-
1. The first step towards amalgamation of Crown's Courts and the Company's Court into a
single judicial system, a Central Legislative Council was established in India under the
Charter Act of 1833. The laws and regulations passed by the Council were equally
binding on ail the courts whether established by the Crown or the Company.
2. In the second phase of unification of the Supreme Court and the Sadar Adalats, the Law
Commission stressed on the need for a codified procedural law before such fusion. The
Bill for the fusion of these two sets of courts was finally introduced by Sir Charles Wore!
In 1853. Consequently, a codified civil procedure was enacted in 1859 and the Penal
Code was enacted in 1860.
3. In the third stage, the East Indian Company was dissolved by the Crown's Act of 1858
and the responsibility of the entire government of India, passed on to the British Crown.
Provisions of Indian High Courts Act, 1861
Finally, the Indian High Courts Act was passed by the British Parliament on August 16, 1 861 by
which the Supreme Court and the Sadar Adalats of the Presidency towns were merged together
to be known as the High Court of Judicature at Calcutta, Madras and Bombay.

Constitution of High Court

Each High Court was to consist of a Chief Justice and not more than fifteen poise Judges, of
whom not less than one-third were to be barristers of minimum five years' standing and one-third
were to be members of the Company's Civil Service having not less than ten years standing
including a minimum experience of three years as a Zila Judge. The remaining Judges could be
either from the Bar or from the Civil Service i.e., persons who had practiced as pleaders in the
Sadar Adalat or the Supreme Court for at least ten years or persons who had held judicial office

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not inferior to that of Principal Sadar Ameen or a Judge of a Small Cause Court for not less than
five years.

Q.4. Why was the Federal Court established in India? Explain its Constitution,
Jurisdiction and Significance in the Indian Legal History?

Ans. Why was the Federal Court Established in India?

Government of India Act, 1935 established federal form of Government of India. Therefore, it
necessitated the establishment of a Federal Court. Federal Court is regarded as an essential
element in federal constitution because it is regarded as the interpreter and guardian of the
Constitution as well as court for the determination of disputes arising among constituent units
and the federation. On 1st October, 1937 the Federal Court was formally inaugurated at New
Delhi. Thus, Government of India Act, 1935 provided for the establishment of a Federal Court
for India at Delhi. The Court was to act as the interpreter and guardian of the Constitution and as,
a tribunal for the determination of disputes between the Constituent units of the Federation.
Thus, it was to act as an umpire in the constitutional disputes arising between the Federal
Government and its component units regarding their spheres of jurisdiction.

Constitution of the Federal Court of India

The Federal Court consisted of a Chief Justice and not more than six puisne judges. All the
judges were to be appointed by his Majesty and to remain in office till they attained the age of
65. A judge of the Federal Court could be removed from office even earlier on the ground of
misbehaviour or infirmity of mind if the Judicial Committee of the Privy Council, on a reference
made to them by His Majesty, reported his removal. To ensure the judicial independence of the
Federal Court, the salaries and allowances of the judges were made non-votable by the
Legislature and were to be fixed by His Majesty in Council.
The emoluments and the conditions of service of the judges could not be varied to their
disadvantage during their term of office. Qualifications for the Judges of the Federal Court No

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person should be appointed as a Judge of the Federal Court unless he passed the following
qualifications-
a. He had served as a Judge of High Court in British India or a Federated State for at least
five years; or
b. He was a Barrister of England or Northern Ireland or a Member of the Faculty of
Advocates of Scotland, of at least ten-year's standing; or
c. He had been a leader of a High Court in British India or a federated State or of two or
more such Courts in succession for at least ten years.
For appointment as a Chief Justice of Federal Court, it was necessary that he should be a
Barrister or Pleader of at least fifteen year's standing. It must be noted that the qualification for
Judgeship of the Federal Court were deliberately so kept in order to exclude members of Indian
Civil Service from this august office.
Jurisdiction of the Federal Court
The Federal Court of India had three types of jurisdiction, namely-
I. Original Jurisdiction
The original jurisdiction of the Federal Court extended to all the disputes arising between the
Federation and any of its units or between two or more component units of the Federation, if it
involved any question of law or fact on which the existence of a legal right depended. If,
however, any federated State was a party to a dispute, then the original jurisdiction of the Federal
Court did not extend to it, unless-
a. The dispute related to the interpretation of the Act or order in Council it related to the
legislative or executive authority vested in the Federation by virtue of the Instrument of
Accession, or
b. It related to administration of a federal law in the State; or
c. It related to an arrangement made after the establishment of the Federation with the
approval of His Majesty's representative for the exercise of the functions of the Crown in
its relations with Indian States; being an agreement which expressly provided that the
jurisdiction of the Federal Court would extend to such a dispute.
d. Appellate Jurisdiction
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The appellate jurisdiction of the Federal Court extended to appeals from any judgment or decree
or final order of the High Court in British India, if the Court certified that the case involved a
substantial question of law as to interpretation of the Government of India Act, 1935 or any order
in Council made the render. 1n such cases, no appeal lay directly to the Privy Council with or
without special leave. The appellate jurisdiction of the Federal Court also extended to some civil
cases where the claim or subject-matter in dispute was not less than Rs. 50,000 or such other sum
not less than Rs. 15,000. Finally, an appeal on any other case could also be brought to the
Federal Court by special leave. These provisions for appeal to the Federal Court in civil cases
were inapplicable to the Federal States. The Federal Court had no appellate jurisdiction over
criminal cases.
e. Advisory Jurisdiction
The Advisory jurisdiction of the Federal Court extended to such questions as were referred to it
by the Governor-General acting in his discretion for its opinion. The questions for opinion
invariably involved interpretation, of the Constitution. The Governor-General was, however, not
bound by the advice tendered to him by the Federal Court. The Federal Court possessed
extensive powers to exercise of its judicial functions. The court could summon and examine
witnesses and order production of any document. It could punish for its own contempt and could
Make rules for regulating its own procedure and legal practice at bar.
Appeals to the Privy Council
The establishment of Federal Court in India did not affect the final appellate jurisdiction of the
Privy Council. In constitutional cases coming under the original jurisdiction of the Federal Court,
an appeal still lay to the Judicial Committee of the Privy Council as a matter of right and without
the leave of the Federal Court. In other cases, however, an appeal lay to the Privy Council by
special leave.
Importance of the Federal Court
The importance of Federal Court in the Constitutional History of India lies in the fact that it was
the first. Federal institution established under the Govt. of India Act, 1935. As a matter of fact, it
was a first constitutional court in the sense that its primary function was to interpret the
Constitutional provisions. This Court inspired a high degree of confidence in the minds of public

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long as India maintained ties with the Privy Council, the Federal Court, was regarded by many as
intermediate appellate Court, and therefore, was denied the position of prominence it merited.
Nonetheless the Federal Court contributed significantly to India's Constitutional development
and when it yielded to the Supreme Court of India on 26th Jan, 1950, it passed to its successor a
tradition of the highest standard of independence, integrity and impartiality.

Q. 5. How Supreme Court of India incorporated the jurisdiction of the Privy

Council and the Federal Court? Illustrate.
Or
Q. 5. Explain in brief the establishment, constitution and jurisdiction of Supreme
Court of India?
Ans. Establishment of Supreme Court
According to Art 124(1) of the Constitution, the Supreme Court of India as the highest court of
the land was established on 26th Jan., 1950 in New Delhi. The position of the Supreme Court
with reference to its powers, appellate jurisdiction and as a guardian of the Constitution is similar
to the Federal Court of India established by the Act of 1935. It is observed in the Report of the
Joint Parliamentary Committee of Indian Reforms, Vol. I Part I that "a Federal Court is an
essential element in a Federal Constitution. It is at once the interpreter and' guardian of the
Constitution and the tribunal for the determination of dispute between the constituent units pf the
Federation." The Supreme Court of India exercises original and exclusive jurisdiction to
determine, the justifiable disputes between the Union and the State or States: or between the
States inter se. The Supreme Court is, now, the final appellate tribunal of India. While acting as a
guardian of the Constitution, the Supreme Court can declare Executive acts unconstitutional. The
Court has the power to declare invalid any enactment which transgresses fundamental rights or is
contrary to some other constitutional provisions.
Constitution of the Supreme Court
The Supreme Court consists of a Chief Justice and seven other Judges. The Parliament may by
law, increase the number of Judges. Now the number of judges in the Supreme Court has gone
upto 26 including the Chief Justice of India. Under this Power the President has now increased
the number of judges to 26 including the Chief Justice. Every Judge of the Supreme Court is

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appointed by the" President by warrant under his hand and seal after consultation with such of
the Judges of the Supreme Court and the High Court Judges as he may deem necessary. A Judge
is to hold office up to sixty- five years of age. A Judge of the Supreme Court must have been for
at least five years a Judge of a High Court, or an advocate of at least ten years' standing or, is in
the opinion of the President, a distinguished jurist. A Judge of the Supreme Court must be a
citizen of India. He can be removed from his office only on the ground of proved misbehavior or
incapacity and by an order of the President passed after an address by each House of Parliament.
Jurisdiction of the Supreme Court
Supreme Court has the following types of jurisdiction-
1. Original Jurisdiction
According to Art 131 of the Constitution, the Supreme Court has an exclusive jurisdiction in
cases arising between (a) the Centre and the constituent States, i.e., the Union and one or more
States or (b) the Union and any State or States on one side and one or more States on the other
side, or (c) two or more States, provided the dispute involves any question (whether of law or
fact) on which the existence or extent of a legal right depends. The Supreme Court shall have no
original jurisdiction over cases involving ambassador and public ministers or treaties nor will
entertain suits to which citizens are a party. Basu observes that, "it is not a Court of ordinary
original jurisdiction in all matters and between all parties." Art. 32 of the Constitution confers
original jurisdiction on the Supreme Court to enforce fundamental rights even though petitioners
in such cases are individuals. Under Art 32 a person can directly go to the Supreme Court for the
enforcement of his fundamental rights. Thus, Supreme Court is the protector and guardian of the
Peoples fundamental rights.

2. Appellate Civil Jurisdiction

According to Art 132 of the Constitution-
1. An appeal lies to the Supreme Court from any judgment, decree or final order of a High
Court whether in a civil (or criminal) or other proceeding if the High Court certifies that the case
involves a substantial question as to the interpretation of the Constitution.

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(b) If the High Court refuses to grant such a certificate the Supreme Court itself may grant
special leave to appeal if it is satisfied that a substantial question of law as to the interpretation of
the Constitution is involved,
2. Appeal lies to the Supreme Court from any judgment, decree, or final order of a High
Court, in a civil proceeding, ff the High Court certifies that the value of the subject-matter
involved in the dispute is not less than twenty thousand rupees; and where the judgment, decree
or final order appealed from the decision of the Court immediately below, if the High Court
further certifies that the appeal involves some substantial question of law.
3. In cases where the conditions in above are not fulfilled, the appeal lies, if the High Court
certifies, that the case is a fit one for appeal to the Supreme Court.
3. Criminal Jurisdiction of the Supreme Court
An appeal in criminal cases lies to the Supreme Court from a High Court, if the latter-
(i) Has in appeal, reversed an order of acquittal and sentenced the accused to death;
(ii) Has withdrawn for trial before itself any case from any court subordinate to its authority and
has in such trial convicted the accused and sentenced him to death; or
(iii) Certifies that the case is a fit one for appeal to the Supreme Court.

Provision of "Special Leave to Appeal"

Art. 136(i) confers discretion on the Supreme Court to grant special leave to appeal from any
judgment, decree, determination, and sentence or order "in any cause or matter passed or made
by any Court or tribunal in the territory of India." The Supreme Court thus enjoys much wider
powers in relation to appeal than what the Privy Council used to enjoy.
3. Advisory Jurisdiction
Under Art. 143 the President is empowered to obtain the opinion of the Supreme Court on any
question of law or fact which is of public importance. Under Art 143 (2) if the President refers to
the Supreme Court matters which are excluded from its jurisdiction under the proviso to Art 131
the Court shall be bound to give its opinion there on.
4. Federal Court's Jurisdiction

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Art. 135 of Indian Constitution provide that the Supreme Court shall exercise the jurisdiction of
the Federal Court (established under the Government of India Act, 1935) in respect of the cases
not covered by Art 133 and 134.
5. A Court of Record
According to Art 129 the Supreme Court is also a Court of Record as such-has power to punish
for its contempt.
6. Law Declared by the Supreme Court is Binding on Subordinate Courts
The law declared by the Supreme Court shall be binding on all the courts subordinate thereto. It
was observed in Kishori Lai V. Devi Prasad, |A.I.R. 1950 Pat. 50(61)(F.B.) that "It is the ratio
decidendi of a Supreme Court judgment which is absolutely binding on all subordinate courts.
Obiter dicta though entitled to great respect, is not absolutely binding." The Supreme Court is not
bound by its own decision and may reverse a previous decision especially on constitutional
question, but the Court will surely be slow to do so unless such previous decision appears to be
obviously erroneous.
7. Power to Review the Previous Decisions
Under Art 137 the Supreme Court has power to review its judgment or order on one or more of
the following three grounds-
a. discovery of new and important matter of evidence,
b. mistake or error apparent on the face of the record, and
C. any other sufficient reason.
10. Power to Issue Writs
According to Art 32 (1) of the Constitution, the Supreme Court is empowered to issue directions,
orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and
Certiorari for the enforcement of the fundamental rights. The power of issuing writs etc. is
subject to regulation by Parliament.
Federal Court
With the achievement of Independence, it would have been highly anomalous to maintain the
system of appeals to the Privy Council otherwise it would have appeared to diminish the full
independence of India. It was therefore inevitable that an Independent India should abolish

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appeals to the Privy Council, and create. Instead a national court of its own as the ultimate
appellate court from the High Courts. This happened on January 26, 1950, when the Supreme
Court of India came into existence under the new Constitution. But during the interim period
from 1947 to 1950, following preliminary steps had to be taken with a view to eventual abolition
of appeals to the Privy Council.
1. The first step in this direction was taken by the Central Legislature in 1948 when it
enacted the Federal Court Act. I of 1948 to provide for the enlargement of the appellate
jurisdiction of the Federal Court so as to embrace civil appeals from the High Courts and,
correspondingly, to restrict and direct appeals to the Privy Council. The Act of 1948 did
not completely abolish appeals to the Privy Council. It did not touch appeals in criminal
cases. Appeals to the Privy Council in civil or constitutional cases were still possible by
leave of the Federal Court or of the King-in-Council. This Act, therefore, did not
completely sever India's ties with the Privy Council.
2. Since the Constitution of India was due to come into force on January 26, 1950, hence it
was felt that steps should be taken to abolish the Privy Council's jurisdiction well before the
crucial date. Again it was felt that the Privy Council should not have jurisdiction even to deal with
and dispose of appeals and petitions which might remain pending before it on that date. That is
why Indian Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act on the
24th September, 1949, to abolish the jurisdiction of the Privy Council in respect of appeals from
India and also to provide for pending appeals so that there might be minimum trouble and
inconvenience at the date of the commencement of the new Constitution, and the process of
transition might be smoothened. The Act came into force on the 10th October, 1949. From that
date as an interim measure, the Federal Court was to be invested with the same jurisdiction to
entertain and dispose of appeals and petition from the judgments, decrees or orders of the High
Court’s as the King-in-Council had at the time. The Act abolished the jurisdiction of His
Majesty-in-Council to entertain appeals and petitions from any judgment, decree or order of any
court or tribunal in India, including appeals and petitions in criminal matters, whether the Privy
Council exercised such jurisdiction by virtue of the royal prerogative or otherwise. All pending
appeals, excepting those which the Privy Council could dispose of before the inauguration of the

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new Constitution were to stand transferred to the Federal Court. The last appeal from India was
disposed of by the Privy Council on December 15, 1949, and with this came to an end India's 200
year old connection with the Privy Council. In this way, on January 26, 1950, the Federal Court
gave way to the Supreme Court under the new Constitution, and thus began an exciting new era in
Indian Legal History. The Supreme Court was inaugurated on January 28, 1950 and is regarded as
the highest court in the land. Thus, the existing Supreme Court assumed the jurisdiction both of
the Privy Council as well as that of Federal Court.

Q.6. Trace briefly the history of appeals to the Privy Council in and Criminal
matters.
Or
Q.6. Trace the history of appeals to Privy Council from India and estimate its
contribution to the growth of law in India.
Ans. The jurisdiction of Privy Council to hear appeals was based on the inherent prerogative
right of Sovereign, as to ensure due justice. The King of England was regarded as the fountain of
administration of justice and to preserve the due course of procedure. Formerly, the right of
appeal from the Dominion's Courts to the King-in- Council was as a matter of grace. But the
subsequent statutes conferred it as a matter of right and could not be regarded as a matter of
grace. But there were certain appeals for preferring for which the specific permission was
necessary from the Privy Council.
These appeals came to be known as "Appeals by Special Leave." Thus, there were two kinds of
appeals which could be preferred to Privy Council from India-
(i) Appeals as a matter of rights,
(ii) Appeals by way of Special leave of Privy Council.
Appeals from India
The following appeals were made from different Indian courts to Privy Council -
1. Appeals From the Mayor's Court

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The Charter of 1726 introduced Mayor's Courts in all the three Presidency Towns of the
Company's settlement. The Mayor's Court were Crown's Courts as they were established by the
British King. Under a provision the- Charter of 1726, granted for the first time a right of appeal
from the judgments of the Mayor's Court, first to the Governors-in-Council and then to the Privy
Council, where the amount in dispute exceeded 1,000 pagodas or Rs. 4,000.
2. Appeals From Supreme Court of Judicature at Calcutta
The Regulating Act of 1773 and the subsequent Charter of 1774, which established the Supreme
Court at Calcutta, give the right of appeal from its decisions to the King-in-Council. An appeal
also could lie from the decisions of the Recorder's Court, where the value of the suit was over
1,000 pagodas in the King-in-Council. The Council was empowered to refuse-or admit the
appeal and to reform, correct or vary such decision, according to the Royal pleasure. The person,
who wanted to appeal, was required to move the Supreme Court within six months of the
pronouncing of the judgment. The Supreme Court was given full pronouncing of the judgment.
The Supreme Court was given full discretion in the matter of acceptance or rejection of appeals.
Provision was also made for moving an application for special leave to appeal in the Privy
Council.
3. Appeal From Madras Supreme Court
The Charter of 1801 which established the Supreme Court at Madras provided for a right of
appeal to the Privy Council. An appeal could be taken only if the value of suit was more than
1,000 pagodas.

4. Appeals From Bombay Supreme Court

A Supreme Court was established in Bombay in 1823 and provision was made for the taking of
appeals to the Privy Council. The conditions of appeals were the same as in the case of Madras
and Calcutta except the appeal was to be taken only if the amount of the suit was more than
3,000 Bombay rupees.
5. Appeals From Sadar Diwani Adalat in Bengal
a. The Act of Settlement of 1781 provided for the taking of appeals from the decisions of
the Sadar Diwani Adalat at Calcutta to the King-in-Council in cases where the amount

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involved in the dispute exceeded £ 5,000. No rules, however, were prescribed to regulate
such appeals by the Act.
b. By the Regulation of 1797, the Privy Council was empowered to hear appeals in civil suit
from the decisions of the Sadar Diwani Adalat, where the amount of the suit exceeded
Rs. 50,000 inclusive of the cost. The appeal was to lie within six months after the
decisions of Sadar Diwani Adalat.
6. Appeals From Sadar Diwani Adalat at Madras and Bombay in 1818
In 1818 the appeals from the decisions of the Sadar Diwani Adalat established at Madras in
1802, could lie to the Privy Council, on the same conditions as in the case of Bengal; No
pecuniary limit was fixed. Appeals could lie even in those cases where the amount involved was
less than Rs. 50,000. In 1818, appeals could lie to the Privy Council from the decisions of the
Sadar Diwani Adalat at Bombay. The value of the suit must not be less than Rs. 5,000. But in the
same year this pecuniary limit was removed. The Eiphinstone Code of 1872 made fresh
provisions to make appeals to the Privy Council. These provisions continued upto 1862 when
High Courts superseded the Supreme Courts, Sadar Diwani Adalat and Sadar Nizamat Adalat.
Besides the above appeals, an aggrieved person had a right to appeal to the Privy
Council from the different Acts, i.e.;—
Right of Appeal under Civil Procedure Code, 1908
The following were the provisions provided in the Civil Procedure Code, 1908, to appeal to the
Privy Council-
Sec. 109 provided that an appeal would lie to His Majesty-in-Council from any decree or final
order passed in appeal by a High Court or by any other court of final appellate jurisdiction from
any decree or final order passed by a High Court in the exercise of original civil jurisdiction, and
from any decree or order when the case was certified to be a fit one for appeal to His
Majesty-in-Council.
Sec. 110 provided that in all cases of appeal the value of the suit must be Rs. 10,000 or upwards,
or the decree or final order must involve, directly or indirectly, some claim or question
respecting to property of like value, and where the decree or final order appealed from affirms

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the decision of the Court immediately below the Court passing such decree or final order, the
appeal must involve some substantial questions of law.
Sec. 111 provided that no appeal would lie to the King-in-Council from the decree or order of
one Judge of a High Court, or one Judge of a Division Court, or of two or more Judges of such
High Court, where such Judges were equally divided in opinion, etc.
The provision of Sec. 112 and various rules or Order 48 C.P.C. provided for a right of appeal to
the King-in-Council.
1. Right of Appeal in Criminal Cases
In criminal cases, an appeal could lie to the King-in-Council from the decision of the High Court
where it was shown that injustice of a serious and substantial character has occurred and it was
not a mere mistake on the part of the Court below. Nor did the Judicial Committee interfere
merely because they themselves would have taken a different view of evidence admitted.
Procedural errors so grave which warrant interference, e.g., wherein deprived the accused of a
constitutional or statutory right to be tried by a jury, or by some particular tribunal, or it might
have been carried to such an extent as to cause the outcome of the proceedings to be deemed as
contrary to the fundamental principle of justice. Appeals would lie only from a judgment of the
High Court in its original criminal jurisdiction, or on a point of law reserved for the High Court
where the High Court declared it fit for the appeal.
2. Right of Appeal under Criminal Procedure Code, 1898
Sec. 411-A of the Criminal Procedure Code, 1898, contained the necessary provisions for the
appeal to the Privy Council. The provisions which regulated appeals to the Privy Council from
the High Court were "as a matter of right." They did not in any way bar, abrogate or curtail the
full and unqualified exercise of His Majesty's pleasure in receiving or rejecting appeals to His
Majesty-in-Council, both in Civil and Criminal cases. The King-in-Council could grant special
leave to appeal in case not falling within the above provisions. It was King's prerogative which
was left untouched by various Acts and Charters.
2. Right of Appeal under the Government of India Act, 1935
Appeals from the Federal Court to the Privy Council lay under the following circumstances-
a. Appeals from the Judgment of the Federal Court exercising its original jurisdiction.

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b. Appeals in any other cases, by leave of the Federal Court to His Majesty-in-Council.
Abolition of the Privy Council's Jurisdiction in 1949
On 24th September, 1949 the Abolition of Privy Council Jurisdiction Act, 1949, was passed to
abolish the appellate jurisdiction of the Privy Council. The Privy Council decided the appeals
which were pending before it. The Federal Court was, as an interim measure, invested with the
same jurisdiction to entertain and dispose of appeals and petitions from the judgments, decrees or
order of all High Courts in India as His Majesty-in-Council had at present.
Contribution of the Privy Council
The Privy Council made unique contribution to the development of law in India. It consisted of
Judges having legal learning and judicial experience. The Privy Council always insisted and
maintained the highest standards of justice and judicial procedure, administered an efficient and
impartial justice, and recognized the noble spirit of law. It formed a strong link between India
and England so far as the Common Law was concerned. It gave to this country the English
principles of law which are the basis of many Indian enactments. In the words of Prof. M.P. Jain,
"In the days when the confusion in the field of substantive law was great and the legislative
bodies settled them, molded and shaped them. The Judicial Committee came to be looked upon
by the Indians with great respect." It may be noted that its decisions were always masterly and
they form even today the fountain source of law in India. Its decisions enriched the Indian
Jurisprudence in many respects.
Privy Council rendered notable judgments in the field of the statute law and personal laws. It
contributed much to the evolution of the commercial law in India. Its interference in the criminal
sphere was very benevolent. Though it interfered very rarely and only under special
circumstance, yet whenever it did, it upheld the principle of natural justice and fostered the
administration of impartial justice. Dr. Tek Chand admired the role of Privy Council in a very
befitting and illustrious manner as-'The Privy Council unrevealed the mysteries of Hindu Law, it
enunciated the principles of Mohammedan Law, and formulated with clarity the customs which
were prevalent in this country. Their Lordships of the Privy Council have, from time to time,
elucidated the various Indian laws with absolutely detached mind. They have laid down the
principles on which the judicial administration of the country was based. No doubt there have

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been lapses and mistakes occasionally, but on the whole, the Privy Council has been a great
unifying factor and on many occasions has reminded the Courts of the country of those
fundamental principles of law on which the administration of justice in criminal matters is based.
Privy Council deserves all the praise and we have every right to feel grateful to this historic
institution which has helped in establishing a sound legal system in India.

Q. 7. Trace briefly the history of writ jurisdiction in India.

Or
Q. 7. What do you understand by the writs? Describe the history of their starting
and issuing in India?

And. The Meaning and Origin of the Writs in England

According to Halsbury, "The common law regards the King as the source or fountain of justice
and certain ancient remedial processes of an extra-ordinary nature which are known as
prerogative writs, have from the earliest time issued from the Court of King's Bench in which the
Sovereign was always in contemplation of law. The prerogative writs were issued only upon
cause shown, as distinguished from the original or judicial writs which commence suits between
party and party and which issue as a course. The Court of King's Bench retained all the
jurisdiction of the Curia Regis in so far as it was not distributed among the courts and this
jurisdiction, including the granting of the prerogative remedies is now under the Supreme Court
of Judicature (Consolidation) Act, 1925 is vested in the High Court of Justice."
History of Writs in British India
The provision for the issue of the prerogative writs was made for the first time by the Regulating
Act of 1773 and has been henceforth continuing. The writ jurisdiction in India may be studied
under two headings-
1. History of Writ Jurisdiction in India Before, 1950
The provision for the issue of the prerogative writs was made for the first time by the Regulating
Act of 1773 and has been henceforth continuing. The writ jurisdiction in India may be studied
under two headings-
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a. Supreme Court of Judicature at Calcutta

The Supreme Court of Calcutta was vested with the power to issue prerogative writs. The clause
4 of the Charter of 1774 provided in this connection and it is our further will that the paid Chief
Justice to have such jurisdiction and authority as our Justices of our Court of King's Bench have
and may lawfully exercise within that part of Great Britain called England by the Common law
thereof." Clause 21 of the same Charter further provided that the Court of Requests and the Court
of Quarter Sessions established at Fort William and the Justices, Sheriffs and Magistrates
appointed for the said districts were made subject to the order and control of the Supreme Court
in such short manner and form as the inferior Courts and Magistrate of and in England were by
law, subject to the order and control of the Court of King's Bench and to that end the Supreme
Court was empowered to issue writ of Mandamus, Certiorari, Pro- ended or Error to be directed
to such Court or Magistrates." This power was given to the Supreme Court so that it could
effectively control the subordinate courts and authorities of the Company engaged in the
administration of justice in Bengal, Bihar and Orissa.
2. Under the High Court Act, 1861
Sec. 9 of the High Court Act provided that the High Court’s shall have and exercise all
jurisdictions and every power and authority whatsoever in any manner vested in any of the
Courts in the same Presidency abolished under this Act at the time of the abolition of such last
mentioned Courts. By virtue of this the High Court’s established at the towns of Calcutta,
Bombay and Madras inherited the powers of the defunct Supreme Court to issue the writs of
Mandamus, Certiorari, Habeas Corpus, etc. The Government of India Act, 1915 and the
Government of India Act, 1935 also reproduced the same provision regarding the powers of the
High Courts to issue various writs. However, the power to issue writs of Mandamus and Habeas
Corpus was taken away by the legislature enactments. In place of such power the three
Presidency High Courts were allowed to issue orders under Sec. 45 of the Specific Relief Act
and S. 491 of the Criminal Procedure Code respectively. As such the High Courts of three
Presidency Towns continued to enjoy the powers to issue the Common Law writs of Certiorari,
Prohibition and Quo Warranto and their powers in this respect were not abolished by legislative
enactments.

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History of Writ Jurisdiction in India After, 1950

Under a democratic set up, the declaration of fundamental rights is meaningless unless there is
effective machinery for the enforcement of the rights. It is in the fitness of things that our
Constitution makers made provisions for an effective remedy of writs under Articles 32 and 226
of the Constitution for the enforcement of these rights-
1. The Supreme Court
Clause 2 of Art.32 of the Constitution of India empowers the Supreme Court to issue directions
or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition,
quo-warranto, certiorari, which sever may be appropriate for the enforcement of any of the
fundamental rights guaranteed by Part HI of the Constitution. Clause 1 of the same Article
provided that the right to move the Supreme Court by appropriate proceedings for the
enforcement of the fundamental rights is guaranteed for no other purpose whatsoever it may be.
The powers to issue the writs are a discretionary power of the Supreme Court.
2. The High Court
Clause1of Art 226, of the Constitution of India empowers every High Court in India to issue to
any person or authority including in appropriate cases any Government, within the territories in
relation to which it exercises jurisdiction, directions, order or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo-warrantor and certiorari or any of them for the
enforcement of the fundamental rights, and for certain other purposes. The power the Supreme
Court The power of the High Court to issue / than that of the Supreme
Court. As the High Court is en' orders or directions for certain other purposes also be
fundamental rights. Under Art.226 of the Constitution the High after ascertaining that the
aggrieved party has a legal right infringed or only after a finding that the entitling him to any of
the writs which has be infringed.

Q. 8. What is Codification? Why was codification of laws essential in the 19th

Century in India? Explain?
Ans. Codification

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Codification means the conversion of all laws into a written and systematically arranged code.
This is the only method by which-
1. Law is made known both to the administrators of justice and the people,
2. To remove the uncertainty of law,
3. To check the introduction of the technical rules of English law,
4. To avoid the evils of judicial legislation, and
5. To preserve the custom suited to the people of the country.
Why was Codification of Laws Essential in the 19th Century?
The codification of laws became necessary in the 19th century due to the following reasons-
1. Provisions of Personal Laws were Silent on Certain Points
The Hindu and Mohammedan Law-givers did not deal with certain branches of law, and further,
they were silent on certain questions of law. In such cases, the doctrine of Justice, equity and
good conscience was applied, but this doctrine instead of reducing the evils of uncertainty of
law, increased them by resorting to judicial legislation.
2. Independence of Tribunals From Each Other
The existence of different tribunals independent of each other further increased the uncertainly.
In the opinion of Lord Macaulay, the decisions of different courts rendered "the law not only
bulky, but uncertain and contradictory." Each of the Chief Courts, established by the Crown and
the Company, '' is perfectly independent of the others. Every one of them is at liberty to put its
own construction of the law; and it is not to be expected that they will always adopt the same
construction. Under so inconvenient a System there will inevitably be, in the course of a few
years, a large collection of decisions diametrically opposed to each other and all of equal
authority."
3. Existence of Different Statute Laws
The existence of different statute laws was also a great cause of uncertainty. They were:
1. English statute law as it existed in 1726;
2. English statute law as expressly extended to India after 1726,
3. Regulations of the Governor-General-in-Council from 1793 to 1834,
4. Regulations of the Governor in Council of Madras from 1802 to 1834,

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5. Regulations of the Bombay Code from 1827 to 1834; and

6. The Acts of the Indian. Legislature passed under the authority of the Charter Act of
1833.
4. No Uniform Criminal Law Existed
In the field of criminal law,, the systems of penal law in Bengal, Madras and Bombay Provinces,
and in the: Presidency-towns, differed from each other.. None of the systems could furnish even
the rudiments of a good Code.
5. Uncertainty of Law of Evidence
The law relating to evidence also was in a state of great uncertainty. Same was the position of the
law of limitation. As regards civil procedure, prior to 1859, there were nine different systems
simultaneously in force in Bengal. Macaulay was a staunch supporter of any project to apply the
principles of Bentham to the heterogeneous laws of India. On July 10, 1833, Macaulay
demonstrated the necessity and practicability of codification during the course of debate on
Charter Bill of 1833 and said "that no country ever stood so much in need of a code of laws as
India, and that there never was a country in which they want might so easily be Supplied in
India, now there are several systems of law widely differing from each other, built co-existing
and co = equal we have now in our Eastern Empire, Hindu Law, Mohammedan Law, Parsee law,
English law perpetually mingling with each other and disturbing each other, varying with the
person, varying with the place It is time that the Magistrate should know what law he is to
administer, that the subject should know under what law he is to live.... 1 believe there is no
country in which that great benefit can more easily be conferred.' Consequently, the Charter Act,
1833 was passed by British Parliament. The said Act directed the Governor-General-in-Council
to purpose of inquiring into the Jurisdiction, powers and, rules of the existing courts and police
establishments in British India and all existing forms'of judicial procedure, and into the nature
and operation of all laws, civil or criminal, written or customary prevailing and in force in any
part of British India, to which any inhabitants of this country were then subject:
Sec. 53 of the Chapter Act, 1833 has been described by Rankin as, "the legislative mainspring of
law reform in India so far as regards policy, though principles and ideas were still to seek." Lord
Macaulay formulated the principle to be followed in codifying the laws thus:

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We must know that respect must be paid to the Feelings generated by differences of religion, of
nation and caste; Much, I am persuaded, may be done to assimilate the different systems of law
without wounding those feelings. But whether we assimilate those systems or not; let us
ascertain them, let us digest them. We propose no rash innovation we wish to give no shock to
the prejudices and any part of our subjects.
Our principle is simply this—Uniformity where you can have it—diversity where you must have
it—but in al1 cases certainty."

Q.9. Trace the development and codification of Hindu and 'Mohammedan laws
during British period in India?
Ans. Application of Personal Laws
Warren Hastings for the first time provided for in his plan of judicial reforms that 'Hindu law for
Hindus' and 'Mohammedan law for Mohammedans', should be applied in certain head of
litigation. That time English judges not being acquainted with the personal laws of Hindus and
Muslims and languages, habits, and customs of natives, took the assistance of native law officers
Pandits and Kazis, who were to expound the principles of law to judges applicable to particular
circumstances. In course of time, a body of precedents was created many principle of Hindu and
Muslim law had established. In 1864, the assistance of law officers was done away. Thereafter
the responsibility to find out the principles of Hindu and Mohammedan taws was placed to the
judge himself. Privy Council also opined that now courts should not seek assistance of expert
advisors. Saving of Personal Laws to Hindus and Muslim Under the Acts of 1781 and 1793-
Under the Act of Settlement it was provided that in cases of contracts, succession and dealings
between parties, Hindu law should be applied if both the parties are Hindus. If parties profess
different religion, then the law of defendant must be applied. In the subsequent years text books
of Hindu laws were prepared in English for the help of English judges. Sir William Johns was a
judge of Supreme Court and who was also a great linguist prepared Codes of Hindu laws with
the help of other judges and scholars. In 1794, he published his famous Institutes of Hindu Laws
or Ordinances of Manu. In 1792, Sir Johns translated Mohammedan law of succession to the
property and law of inheritance. Sir Francis Macnaughten published his considerations upon

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Hindu law in 1824. A more valuable work was his considerations upon Hindu jaw in 1824. A
more valuable work was published by Sir Thomas Trange, the Chief Justice of Madras Supreme
Court in 1825. Sir William Hay Macnaughten published principle and precedents of Hindu law
in 1829. Maine published treatise on Hindu law and usage in 1878. Neil Baillie's treatise of the
law of inheritance was described as excellent work. The Cornwallis Code of 1793 also provided
that in suits regarding succession, inheritance, marriage and caste and all religious usages Hindu
laws should be applied if parties are Hindus.
Personal Laws and the Court
While the text books of Hindu and Mohammedan law were being prepared, the real work for
ascertainment of personal law was done by the court, specially by Privy Council. With what
delicate subject with an unfeigned desire to decide questions of Hindu law in harmony with the
religious feelings of the Hindus.
The Privy Council was aware of the fact that the Hindu law contains in itself the principles of its
own exposition Nothing from foreign source should be introduced into it, nor should courts
interpret: the text by the application to the language of strained analogies. The source of Hindu
law, i.e., Srutis, Smrities or Dhramshastras is not pure work of law but are combined work on
religion, morality, ethics and law. Therefore, court faced difficulty in expounding law through
these sources. Apart from this, the customs of Hindus were also taken into consideration. Thus,
Privy Council played an important role in the development of personal laws-of Hindus and
Mohammedans.
Hindus Law and Ancient Literature
The Sruti, Smritis, Dharmshastras and customs are treated an important source of Hindu law.
The Srutis contain the words of God and they include the four Vedas. This contain a little of law.
The smiritis are the collections handed by the Rishis of antiquity of the precepts of God. These
Smritis are principle source of law. Three Smritis are important, the Code of Manu the Code of
Yajnavalkya and the Code of Narda. These Smritis donot agree with each other in all respects.
Various commentators have tried to resolve this disagreement. Two Schools of Hindu
Laws—there are two schools in Hindu Law, Mitakshara of Vijnaneswara and Dayabhaga of
Jimtitvahana. The Dayabhaga School prevails in Bengal and Mitakshara in rest of the country.

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Both the commentators are supreme in their fields. Jifnutvahana wrote his Dayabhaga in 13th
century. Mitakshara is a commentary on Yajnavalkya Smriti.
Judicial Process and Mohammedan Law
Judicial process in the sphere of Mohammedan law was not less important. Court not only
ascertained the law but also introduced new principles, though to a much lesser extent than in
Hindu law; notions of English equity and law. Time to time Muslim jurists have criticised the
judicial pronouncements also. Fyzee observed that in Abul Fata V. Russomoy, by holding that
family waqfs were void, their Lordships misunderstood an important point of Mohammedan law
of waqf, misapplied a rule of English law to the Muslim institution of waqf and overruled a long
line of Muslim jurists both modern like Mr. J. Ameer AH and ancient too numerous to mention.
Application of Personal Laws on Sects and Subjects
When the law of Koran to the Muslims and the law of the Shastras to the Hindus were applied, it
was erroneously believed that Indian people are divided into two great classes. Actually, Hindus
and Mohammedans are divided into various sects, and sub-sects. The Mohammedans have two
sects, Shias and Sunnis. Hindus are divided in various groups like Sikhs, Jains, Bhudhists, and so
on. Then naturally question arose as to whether Mohammedan law is applicable to Sunnis and
Shias or whether, Hindu law is applicable to Jains and Sikhs. But, the attitude of Muslim jurists
to custom was somewhat different from that of Hindu jurists. The sources of Muslim law are
Koran, Hadis, Ijma, Urf and Kyas. Urf or customs assume somewhat subordinate place in the
scheme of Muslim law.
In order to effect the changes the following Acts were passed by Indian legislature
from time to time-
1. The Caste Diabilities Removal Act, 1850;
2. The Hindu Widows Remarriage Act, 1856.
3. The Native Converts Marriage Dissolution Act, 1886.
4. The Hindu Wills Act, 1870.
5. The Transfer of Property Act, 1882.
6. The Indian Majority Act of 1875.
7. The Guardian and Wards Act of 1890.

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8. The Hindu Inheritance (Amendment) Act, 1929.

9. The Hindu Inheritance (Removal of Disabilities) Act, 1928.
10. The Hindu Gains of Learning Act, 1930.
11. The Special Marriage Act of 1872.
12. The Hindu Women’s' Right to Property Act of 1937.
13. The Arya Marriage Validation Act of 1937.
14. Hindu Married Women's Right to Separate Residence and Maintenance Act, 1947.
15. The Hindu Marriage Validity Act, 1949 and Hindu Marriage Act, 1953.
16. The Hindu Succession Act of 1956.

Short Questions
Q10. Explain the provisions of the Government of India Act 1915?
Ans. Provisions of the Government of India Act 1915
It contained the following provisions-
1. The Act deprived the High Courts of its original jurisdiction in any matter concerning revenue.
The effect of this provision was that in its appellate side it could exercise its jurisdiction over
matters concerning revenue but in its original side it could not.
2. Another important change was the Act exempted the Governor General the Governors the
Lieutenant Governor General Chief Commissioners and the members of the Executive Council
of the above and also the minister from the original jurisdiction of the High Court for anything
counseled, ordered or done by any of them in their official capacity,
3. The Act also provided that a written order of the Governor – General in Council could protect
any person for the act he has done according to order in any civil or criminal proceeding in any
High Court on its original side. However, this exemption was not extended to any Eurropean
British subjects.
4. Under this Act the High Courts were to apply in the exercise of their civil jurisdiction the
personal laws or customs if both the parties were subject to the same personal law or customs,
otherwise the law of the defendant.

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Q. 11. The Charter Act, 1833 laid the foundation of constitutional system in
India. Explain and discus the main provisions of the Act?
Ans. The Charter Act 1833
The law prevailing in India before the Charter Act 183 was uncertain ambiguous and defective.
There were three legislatures for three provinces of Bengal, Bombay and Madras which were
legislating regulations separately and independently. As there were three types of regulations on
the same subject in the three provinces, so there was no coherence of the laws and they needed
codification. These circumstances and many others compelled to pass the Charter Act of 1835
which forms a watershed in the legal history of India.
Main Provisions of the Act of 1833
1. The company’s monopoly of the China trade and the tea trade was taken away by this Act.
2. The superintendence, direction and control of the whole civil and military government were
expressly vested in the Governor – General – In- Council.
3. By this Act company was required to close it commercial business as early as possible but
retained its administrative and political power.
4. Under the Charter of 1833 the Central Legislative was created. All the legislative powers of
Indian Government Exclusively were vested in the Governor General and Council.
5. The laws made under the Charter Act 1833 were to be called as Acts and took the place of the
‘Regulations’ under previous Acts OF Parliament.
6. British Parliament was also vested with legislative powers under this Act to make legislature
for India.
7. Under the Charter Act of 1833 the provision was made for the appointment of a law
commission. The commission was to investigate the laws and prepare the drafts for codification
Importance of the Charter
Calcutta Gazette of October 1833 has led the Charter’s renewal by calling for 2 general
illumination and display of fireworks which were granted and brought much satisfaction to a
populace always agreeable.

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Q. 12. Discuss the salient features of the Muslim Criminal Law that was in force
in India before the interdiction of the English Law?
Ans. Features of Muslim Criminal Law
The Muslim Criminal Law provided four kinds of punishment for various offences-

Kisa
Kisa or relationship means life for life and limb for limb. It applied to willful killing of human
being and to certain types of grave wounding or maiming. It gave to the injured person or his
next kin in case of slave to his master, the right to inflict a similar injury on the wrongdoer.
Diya (Blood Money)
Kisa could be exchanged with diya, i.e. blood money. In case of the willful murder, the fine of
the blood was capable of being exacted only from the criminal himself.
Hadd
It means boundary or limit. In criminal law it means specific penalties for specific offences. The
idea behind it was to ribs, define and fix the nature, quantity and equality of the punishments for
certain particular offences which the society regards as anti-social and anti-religious. These
offences were characterized as being against God. Judges had no direction in this matter. Thus
for Zina (illict intercourse) the punishment was stoning or scouring or falsely accusing a married
woman of adultery and for wine drinking, the penalty was fixed to be scouring.
Tazir (Discretionary Punishment)
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The judges were free to exercise their discretion as regards the kind and amount of the
Punishment, boxing on the ear or any other humiliating treatment.
Siyasat
King could punish the guilty person in the interest of public.
Procedure
Any person would be punished for an offence on his conviction. In the absence of confession
two male witnesses for murder and four male witnesses for Zina were required. The confession
should be made four times before the Kazi and it could be retracted at any time. The witness of
one Muslim was equivalent to two non-Muslims or two women. The criminal could be accused
on either direct or documentary or circumstantial of evidence.

Very Short Questions

Q. 13. What was the basis of the jurisdiction of the Privy Council to hear appeals
from the Courts in India?

Ans. Privy Council and Its Brief History

The British administration of justice is based on the fundamental principle that the King is the
fountain of justice. He is a fountain of justice in the sense that justice is conducted through him.
He is not the spring from which the justice originates but he is the fountain through whom and
through several channels of the Courts justice is conducted. Generally, justice is conducted
through the Courts but yet there is a residuary prerogative power with the King. The authority of
The Privy Council is based on this prerogative of the King, from the time of the Normans, the
King-in-council has entertained jurisdiction to set aside injustice and to establish justice. The
King-in-Council was supposed to advise the Crown in this matter it did in other affairs of the
State. In course of time, the House of Lords emerged as the final Court of appeal from the
Courts in England But yet the Jurisdiction of the King-in-Council continued over the possessions
of the King outside Great Britain. To begin with this was a discretionary jurisdiction which the
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King in Council could exercise whenever it thought it fit. The petition to the King in Council was
entertained only as matter of grace but with the development of the oversea colonies and the
empire of India, the appeals to the king-in- Council became a privilege of the subject.

Q. 14. What do you mean by Lex Loci Report?

Ans. Lex Loci Report
There was a lot uncertainty with regard to the civil law applicable to the Christians, Anglo
Indians and Armenians residing in the Mofissil. The attention of the first Law Commission was
directed to this problem in 1837.
To solve the problem the Commission proposed that the substantive law of England should be
made the law of the Christians, Anglo- Indians and Armenians living outside the Presidency
Towns. But certain restrictions were to be imposed while applying the substantive law of
England. Only those laws were to apply which were to be suitable to the conditions prevailing in
India. The English Law was not to be opposed to any regulation of any presidency. Restrictions
were also to be imposed with regard to the applications of English Law in matters of Marriage,
Divorce and Adoption. Rules of Equity as applied in England were to override the Substantive
law of England.
Q. 15. Write the Short note on the Fourth Law Commission?
Ans. Fourth Law Commission
Fourth Law Commission was appointed on February 11, 1879 to carry on the work further. The
Law Commission was in favour of Codification suited to Indian conditions. It though it better to
codify the law far as possible. Although the entire scheme suggested by the Commission could
not be carried out yet under Dr. Whitley Stokes much codification and the revision of existing
codes took place. In the year 1881 the Negotiable Instrument Act and in 1882 the Transfer
property act the Easement Act, the Trusts Act and later on the revised Civil Procedure Code and
Criminal Procedure Code were enacted.
With the expiry of the term of the Fourth Law Commission there came and end of a large scale
codification under taken by the British Government.

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Q. 16. What do you understand the Charter Act of 1853?

Ans . Charter Act of 1853
Charter Act of 1853 was passed to renew the charter of the company. The introduced several
modifications. The most important changes were-
1. The law member was made a full – fledged member of the Governor- General-In-Council
and he could participate in all the meetings of the council, and
2. The council was expands to include one nominee each of the Governor and Lt.
Governors, The chief justice of the Supreme Court of Calcutta, a judge of the Court to be
named by the Governor General and two more nominees of the court of Directors were included
to be members. A law passed by the Council had to be assented to by Governor- General before
it came into force. Thus, the Charter Act 1853 changed considerably the legislative process and
brought about a marked distinction between the Legislative Council and The Executive Council.

UNIT – IV

Long Questions

Q. 1 Explain the Modern Judicial Syste?.

Ans. MODERN JUDICIAL SYSTEM

Having discussed the origin and development of various types of courts for the administration of
justice in British India, it would be in the fitness of things to give a brief account of the differ9nt
courts functioning under the modern judicial system in this country. The hierarchy of courts
functioning in modern India is as follows:

The Supreme Court of India

The Supreme Court has been declared as the highest Court of the land by the Constitution of
India. It is at once the interpreter and guardian of the Constitution. It is the highest appellate
court of the country. It has original, appellate and advisory jurisdiction as discussed in the earlier
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chapter. It is empowered to frame rules with the approval of the President, relating to the practice
and procedure of the Court. A Judge of the Supreme Court may also to give a dissenting
judgment.

The Supreme Court being a court of record can punish for its contempt. Such power is necessary
for maintaining the sanctity of the Court and its authority It is independent of the control of the
executive and legislature i.e., Parliament as is evident from the provisions relating to the
appointment and removal of the judges of the Supreme Court.

The High Courts

Immediately below the Supreme Court, there are High Courts in different States, which
constitute the highest Court of Appeal and revision in the State, both for civil and criminal
matters. The High Courts are also the courts of record in the State and have to perform the
general functions of superintendence and control over the subordinate courts within its territorial
jurisdiction. The High Court exercises original jurisdiction in matters relating to issue of writs
for violation of fundamental rights of persons and for any other purpose.

Subordinate Courts
Below the High Court of the State, there exists a network of subordinate Courts comprising
criminal and civil courts. Though there is no uniformity as regards jurisdictional limits of
different categories of subordinate courts in different States, nevertheless the organization of
these courts is more or less similar in most of the States. The various categories of subordinate
civil and criminal courts are discussed below.

1. Civil Court
In general, the hierarchy of Courts which exist in each State for the administration of civil justice
consists of:

2. District Court
There is a Court of District Judge in each district which is the Principal Civil Court of original
jurisdiction. It also exercises appellate jurisdiction for the orders and decree of the subordinate
courts in cases up to Rs. 5,000/- in value. The District Judge has the power to control and
supervise the whole subordinate judicial Courts in the District. He is assisted in his work by the
Additional District Judges wherever necessary.

3. Lower Courts
Below the District Court, there are a number of courts of judges having different designations in
different States. In some States they are designated as Munsifs while in others they are called as
Civil Judge class I and class II. Their pecuniary jurisdiction varies from State to State3 between
Rs. 1,000/- and Rs. 5,000/- as contained in the Civil Courts Acts of the respective State.

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4. Other Small Causes Courts

Besides the lower subordinate Courts, there are a few more Courts of minor jurisdiction which
are called the Courts of Small Causes. They are meant to provide cheap and speedy justice in
petty civil cases. The Courts of Small Causes were first established iri.1860 which was amended
in 1865 and again in 1867. The same person may be appointed as Judge of more than one such
court. Each Court of Small Causes has a Registrar who is a ministerial officer of the Court. He
may, however, be empowered to try civil cases below Rs. 20/- in value. The Judge of the Small
Causes Court can decide civil cases up to the value of Rs. 1,000/-. The jurisdiction of this court
is exclusive and its decision is always final. However, the High Court has the power to revise the
decision of the Small Cause Courts. The Small Causes Courts are under the control of the
District Court and under the superintendence of the High Court of the State.

In addition to the courts mentioned above, certain States also have Courts of Mamlatdars and
Village Munsiffs as in Maharashtra or Village Courts in Madras or Honorary Munsiffs and
Magistrates in the State of Uttar Pradesh.

5. The Village Panchayats

After the Indian Independence most of the States have established Village Panchayats which are
commonly known as ‘Gram Panchayats’ in compliance with the directive principles contained in
Article 40 of the Constitution of India. Each Gram Panchayat consists of an elected head called
the Sarpanch and an Up-sarpanch to assist the Sarpanch. The members of the Panchayat are
called the ‘Panchas’ who are elected by the village people. The Gram Panchayat conducts its
proceedings in public and exercises petty civil as well as criminal jurisdiction but it has no power
to execute its decisions. As regards civil cases, the Gram Panchayat decides petty cases involving
money, goods, recovery of movable property or compensation claims to the extent of Rs. 200/- in
value. However, under special powers, this pecuniary limit can be extended upto Rs. 500/-. The
plaintiff has to file a written plaint to institute a suit in a Panchayat and the decrees passed by it
are executed by the concerned civil court. The District Judge exercises supervisory control over
the working of the Panchayats. He can suspend the Panchayat for incompetency or abuse of
powers etc. Likewise, the members of the Panchayat can also be removed for misconduct
incompetence or insolvency.

II. Courts for Criminal Justice

The subordinate courts administering criminal justice function uniformly throughout the country
under the Code of Criminal Procedure, 1973. These consist of Courts of Magistrates of different
categories and the Sessions Courts.
The Code of Criminal Procedure, 1973, provides that there shall be, in every State, the following
classes of criminals Courts, namely:

(I) Courts of Session;

(ii) Judicial Magistrates of the first class, and in any metropolitan area, Metropolitan
Magistrates;
(iii) Judicial Magistrates of the second class; and
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(iv) Executive Magistrates.

(i) The Court of Session

Each district of the State has a Court of Session which is presided over by a District & Sessions
Judge. Additional Session Judges may also be appointed for assisting the Session Judge in his
work. They are equal in rank and not subordinate to the Sessions Judge. The criminal cases of a
grave nature are tried in the Sessions Court and the Session Judge can pass any sentence.
However, the sentence of death passed by him, requires confirmation of the High Court
concerned for final execution. The Sessions Court also hears appeals from the Courts of District
Magistrates and those of special magistrates.

(ii) Judicial Magistrates

The Code of Criminal Procedure, 1973 provides to the appointment of a Chief Judicial
Magistrate in every district. He is assigned the powers of the Magistrate of the first class. The
appointment of the Chief Judicial Magistrate is made by the High Court of the State concerned.
Every Chief Judicial Magistrate shall be subordinate to the Session Judge. He can pass any
sentence authorised by law except a sentence of death or of imprisonment for life or
imprisonment for a term not exceeding seven years.
Besides the Chief Judicial Magistrate, there are also the Courts of Magistrates which are further
classified as Judicial Magistrates and the Executive Magistrates. There are two grades of Judicial
Magistrates, namely, the Judicial Magistrate of the first class and the Judicial Magistrate of the
second class.
The Court of Magistrate of the first class may pass a sentence of imprisonment not exceeding
three years, or fine not exceeding Rs. 5000/- or both.
The Court of Magistrate of the second class may pass a sentence of imprisonment for a term not
exceeding one year, or fine not exceeding Rs. 1000/- or both.

In Metropolitan areas, the Court of a Chief Metropolitan Magistrate shall have the powers of a
Chief Judicial Magistrate and the Metropolitan Magistrate shall have the powers of the
Magistrate of the first class. The Chief Metropolitan Magistrate shall be subordinate to the
Sessions Judge.

(iii) Executive Magistrates

In every district and in every Metropolitan area, the State Government may appoint as many
persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be District
Magistrate.13 The State Government may appoint any Executive Magistrate to be an Additional
District Magistrate who shall also have the same powers as those of a District Magistrate. The
State Government may place an Executive Magistrate in charge of a Sub-Division and the
Magistrate so placed in charge of a Sub-Division shall be called a Sub-Divisional Magistrate.
The State Government may also appoint Special Executive Magistrate for particular areas or for
performing particular functions.
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III. Revenue Courts

The system of courts adopted by different States for adjudication of revenue cases is more or less
similar with minor deviations in the designations of the revenue officials.

Nyay Panchayats
A provision was made in Art. 40 of the Indian Constitution asking the State to Take steps to
organize village panchayats and endow them with such powers and authority as may be
necessary to enable them to functions as units of self- government. The Naya Panchayat are the
Judicial component of the Panchayat system.

Q. 3. Explain the development Legislative Institution?

Ans. Provisions relating to changes in the Government of India

(1) The Ch4rter Act of 1833 aimed at introducing centralization in the administration particularly
the legislation. With a view to attaining this purpose the superintendence, direction and control
of the whole civil and military government of the Company’s possessions in India was vested in
the Governor General of India in Council.

(2) The Act, for the first time provided for the appointment of a Fourth Member to the Governor
General-in-Council This Member was to be appointed by the Court of Directors with the
approval Crown from amongst the person not in the service of the company. The duty this Furth
Member w confined entirely to the subject of legislation and he had power to sit or vote in the
Council except for the purposes of making 1aw and regulation.” It was only by courtesy and
not by right, that he was allowed to see the papers or correspondence, or to be made acquainted
with the deliberations of Government upon any subject not immediately connected with
legislation.” Accordingly, Macaulay was appointed as the Fourth Member of the Governor
General-in- Council of India.

(3) The Act also empowered the Court of Directors to appoint the Commander-in-Chief as an
extraordinary Member of the Governor-General’s Council and he was to occupy a rank next to
the Govenor-Genera1. The Governor-General together with four Members of his Council and the
Commander-in-Chief as the extraordinary Member formed the Supreme Council of the
Government of India.

(4) It is significant to note that while the Charter Act, 1833 was being discussed in the House, the
attentions of the Parliament was drawn’ to three leading vices in the frame of Indian
Government. The first was in the nature of the laws and regulations, the second was in the
ill-defined authority and power from which these various laws and regulations, emanated; and
the third was the anomalous and sometimes conflicting judicatures by which the laws were
administered.
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(5) The Act of 1833 also directed the Governor General-in-Council to appoint a, called the
‘Indian inquire met the nature and operation of all kinds of laws in the existing courts of justice
and police establishments in Indian territories and all existing form of judicial procedure. The
Commission was to report to the Governor-General, the results of their inquiries and suggest
alterations to collate and codify various laws and regulations. This was necessary for
standardization of the judicial system by introducing uniform laws throughout British India.

(6) The Act reiterated the overriding power of Governor General. The Governor General and his
Councillors had to exchange and communicate their respective opinion on a particular issue in
writing to each other giving reasons for holding that view. If no agreement could be reached by
exchange of such communications, the Governor General was empowered to reject the majority
decision. The only condition being that he had to express in writing for rejecting the majority
decision of his colleagues.

III. Provisions relating to the Government of Presidencies

(1) As stated earlier, the Charter of 1833 primarily aimed at the centralization of civil and
military government of entire British possessions in India into the Governor General-in-Council
at Calcutta. With this end in view the draft of the Act initially contained a suggestion that the
Governor’s Council functioning at Presidencies should be abolished and the whole governmental
authority be vested in the Governor General-in-Council at Calcutta. But this suggestion was
strongly opposed by the Court of Directors and the Parliament, and the Presidency Councils were
finally allowed to continue. The suggestion, however, did not go completely unheeded and the
powers of the Presidency Councils were drastically curtailed. The reluctance of the opposition in
retaining Governor’s Council in Presidencies is further evinced from the fact that the fourth
Presidency of Agra, which was to be created as a result of the division of the overgrown Bengal
Presidency according to the Charter Act of 1833 never came into existence.

(2) The number of the members of the Governor’s Council in Presidencies was fixed at three by
Clause 56 of the Act but the Court of Directors were empowered to reduce this number or to
revoke or suspend the appointment of Presidency Councils in all or any of the Presidencies and
in that even the entire executive functions of the Government of the Presidency were to be vested
in the Governor alone.

(3) The Act of 1833 further sought to bring about the centralization of financial resources thus
putting the existing financial decentralization to an end. The Presidency Governments could raise
revenues and incur expenditure only with the authority and sanction of the Government of India.
They could not spend more than the allotted sums on different heads and could also not divert
the allotment sanctioned for one head to another. They could not grant salary, gratuity or
allowance without the previous sanction of the Governor General-in-Council.

(4) As already stated, the Presidency Governments were completely divested of their legislative
power and the Governor General-in-Council was to legislate for whole of the British territories in

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India. Thus the Act provided that the law-making power for the whole of British India was
exclusively vested in the Governor General-in-Council.

In short, the Act of 1833 brought the Governments of Presidencies in complete executive,
financial and legislative subordination to the Governor General-in-Council at Calcutta thus
paving way for the unification of British India under a solitary Government of the Governor
General-in-Council at Calcutta.

Q. 4. Explain the India Council Act 1861.

Ans. India Council Act1861

The Indian Council Act 1861 was passed by the British Parliament on 1August 1861 to make
substantial changes in the composition of the Governor General’s Council for executive
&legislative purposes. The most significant feature of this Act was the association of Indians
with the legislation work.

Reasons for Enactment of Indian Councils Act

The Governor General of India Act 1858 had introduced significant changes in the manner in
which India was governed from England however it did not alter in any substantial way the
system of Government that prevailed in India. Further, in the aftermath of the Mutiny of 18577,
there was a general perception in England that it would be very difficult to secure the
government in India without the cooperation of Indians in administration. These were the main
reasons behind enacting some legislation which could overhaul the system of administration in
India. Some other reasons were as follows-

Centralized law making was defective

The Charter act of 1833 has centralized the legislative procedures and deprived the governments
of Madras and Bombay of their power of Legislation. The idea behind centralizing the law
making was secure uniformity of law in the whole territory of East India Company but this
proved to be defective. It had only one representative each of the four provinces and it failed to
make laws suiting to local conditions. Thus, there was need to allow the provinces to make laws
for themselves.

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Governor General- in- Council was Overburdened

The Governor General in Council was failing in its legislative functions and was not able to work
satisfactory die to cumbersome procedures leading to delay in enactments.

Absence of Representation
It also had no representation of the people in it. There was a growing demanded that some
representative element should be introduced in legislative council.

Key Provisions

Expansion of executive council of Governor General /Viceroy

The executive council of Governor General was added a fifth finance member. For legislative
purpose a provision was made for an addition of 6 to 12 members to the central executive. At
least half of the additional members were to be non-officials these members were nominated by
the Viceroy for the period of two years. Further, the Governor General/ Viceroy had been given
some more powers such as-
• He was authorized to nominate a president to preside over the meeting of the executive
council in his absence.
• He had the power of making rules and regulations for the conduct of business of
executive council.
• He could create new provinces for legislative purposes and appoint Lieutenant Governors
for them. He was also empowered to alter, modify or adjust the limits of the Provinces.
• He could promulgate ordinances, without the concurrence of the legislative council,
during and emergency.
• Though the central council was empowered to legislative on all subjects concerning all
persons and courts in British India but every bill passed required the assent of viceroy.
• He could without his assent or exercise his veto power if he felt that the bill affected the
safety, peace and interest of British India.
• He had to communicate all laws to secretary of state for India who could disallow them
with the crown.

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Q. 5. What are the main features of the Minto-Morley reforms? Did these
reforms satisfy the Indian aspirations? Explain in brief the circumstances in
which the Indian Council Act, 1909 was passed? What are its main provisions?

Ans.                          Morley‐Minto Reform 
 
A Morley-Minto Reform was another name of Indian Council Act of 1909, AD which was
named after the secretary of state and the Viceroy. It was instituted to placate the moderates.
According to this act, the membership of the central and provincial legislative councils was
enlarged. However, the number of elected members in these councils was less than half of their
total membership. It may also be remembered that the elected members were not elected by the
people but by landlords, organizations or traders and industrialists, universities and local bodies.
The British also introduced communal electorates as a part of these reforms. This was meant to
create disunity between Hindus and Muslims. Some seats in the councils were reserved for
Muslims to be elected by Muslim voters.

By this the British hoped to cut off Muslims from the nationalist movement by treating them as
apart from the rest of the nation. They told the Muslims that their interests were separate from
those of other Indians. To weaken the nationalist movement, the British began to consistently
follow a policy of promoting communalism in India. The growth of communalism had serious
consequences for the unity of the Indian people and the struggle for freedom. The congress at its
1909 session welcomed the reforms but strongly opposed the reforms the creation of separate
electorates on the basis of religion.

The Morley-Minto reforms did not introduce any significant change in the powers of the
councils. They did not mark and advance towards the establishments of a representative
government, much less swaraj. In fact, the Secretary of state frankly declared that he had
absolutely no intention of introducing a Parliamentary form of Government. The autocratic form
of government that had been introduced after the revolt of 1857 remained unchanged even after
the Morley-Minto reforms.

Later he was made a governor of a province, the only Indian to occupy such a high office during
the entire period of British rule. In 1911, he was presented in an imperial Darbar that was held at
Delhi at where British king, George V, and his queen were also present. The Darbar was also
attended by Indian princes who displayed their loyalty to the British crown. Two important
announcements were made on the occasion. One was the annulment of the partition of Bengal
which had been affected in 1905. The other was the shifting of the capital of British India from
Calcutta to Delhi.
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Features of the Act

1. It considerably increased the size of the legislative councils, both Central and provincial. The
number of members in the Central Legislative Council was raised from 16 to 60. The number of
members in the provincial legislative councils was not uniform.
2. It retained official majority in the Central Legislative Council but allowed the provincial
legislative councils to have non-official majority.
3. It enlarged the deliberative functions of the legislative councils at both the levels. For
example, members were allowed to ask supplementary questions, move resolutions on the
budget, and so on.

Major provisions of the Morley-Minto reforms

• The legislative councils at the Centre and the provinces increased in size.
• Central Legislative Council – from 16 to 60 members
• Legislative Councils of Bengal, Madras, Bombay and United Provinces-50
members each
• Legislative Councils of Punjab, Burma and Assam-30 members each
The legislative councils at the center and the provinces were to have four categories of
members as follows:
• Ex officio members: Governor General and members of the executive council.
• Nominated official members: Government officials who were nominated by the
Governor-General.
• Nominated non-official members: nominated by the Governor-General but were
not government officials.
• Elected members: elected by different categories of Indians.
The elected members were elected indirectly. The local bodies elected an electoral college who
would elect members of the provincial legislative councils. These members would, in turn, elect
the members of the Central legislative council.

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The elected members were from the local bodies, the chambers of commerce, landlords,
universities, traders’ communities and Muslims.

In the provincial councils, non-official members were in a majority. However, since some of the
non-official members were nominated, in total, a non-elected majority was there.

Indians were given membership to the Imperial Legislative Council for the first time.

It introduced separate electorates for the Muslims. Some constituencies were earmarked for
Muslims and only Muslims could vote their representatives.

The members could discuss the budget and move resolutions. They could also discuss matters of
public interest.

They could also ask supplementary questions.

No discussions on foreign policy or on relations with the princely states were permitted.

Lord Minto appointed (on much persuasion by Morley) Satyendra P Sinha as the first Indian
member of the Viceroy’s Executive Council.

Two Indians were nominated to the Council of the Secretary of State for Indian affairs.

Short Questions

Q. 6. What charges are affected by Indian High Court Act 1861 in the
administration of Justice?
Ans. By the High Court Act 1861 the Supreme and Sadar Court were amalgamated. The Indian
High Court Act 1861 vested in Queen of England to issue letters patent to erect and establish
High Courts of Calcutta, Madras and Bombay were established by Indian High Court Act 1861.’
It’s worth note that Indian High Court Act 1861 did not by itself create and establish the High
Court in India. The objective of this Act was to effect a fusion of Supreme Courts the Sadar
Adalats in the three Presidencies and this was to be consummated by these Court was to be
assumed by The High Courts.
Composition of the High Court’s

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The Indian High Courts Act 1861 had also spelled the composition of the High Court.
1. Each High Court was to consist of a Chief Justice and NOT more than 15 regular judges.
2. The chief and minimum of one third regular judges had to be barristers and minimum one
third regular judges were to be from the covenanted Civil Service.
3. All Judges were to be in the office on pleasure of Crown.
The High Court’s has an Original as well as an Appellate Jurisdiction the former derived from
the Supreme Court and the latter from the Sadar Diwani and Sadar Foujdari Adalats which were
merged in the High Court.
Q. 7. Discuss the Minto Morley Reforms of 1909 and their constitutional
importance.
Ans. Jurisdiction of Federal Court
The Federal Court of India had three types of Jurisdiction-

Advisory 
Appellate  Jurisdiction 
Original 
Jurisdiction
Jurisdiction 

Under sec. 206 of the Government of India Act of 1935 the Central or the Federal Legislature
had the authority to enlarge the Jurisdiction of the Federal Court in regard to civil case.
Original Jurisdiction
The Federal Court of India had exclusive original jurisdiction in any dispute between the
federation and the units of the units inter se.
Appellate Jurisdiction
Appeal lay to the Federal Court of India from any High Court in British India if the High Court
certified that the case involved a substantial question of law as to the interpretation of the
Government of India Act 1935 or Order in Council made thereunder. An appeal would also lie to
the Federal Court by way of Special case.
The appellate jurisdiction of the Federal Court could be categorized under the following heads-
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a.) Appellate Jurisdiction in Civil Case.

b.) Appellate Jurisdiction in Criminal Case.
c.) Appellate Jurisdiction in Constitutional Matters.

Advisory Jurisdiction
The Governor – General could in his discretion refer to the court for consideration a question of
law and obtain the opinion thereupon Authority of law lay down by Federal Court Sec. 212 of
the Government of India Act 1935 provides that the law declared by the Federal Court and any
judgment of the Privy Council shall binding on all courts in British India.
The Federal Court
Expansion of jurisdiction and it Abolition The jurisdiction of Federal Court was expanded by the
Act known as “The Federal Court (Enlargement of Jurisdiction) Act 1947.”
The Federal Court of India was suppressed by the Supreme Court of India established under the
Constitution of India on the 26 January 1950.

Q. 7. Write down the salient features of the Government of India Act 1909.
Ans. Salient features of the Government of India Act 1909
1.) It increased the number of elected members in the Imperial Legislative Council and the
Provincial Legislative Councils. However, overall majority of nonelected members remained
intact.
2.) Even elected members were to be elected indirectly by Electoral College, elected by local
bodies.
3.) Powers of legislatures were enlarged to enable it to pass resolution and ask questions and
supplement arises, but yet not able to vote upon the budget as a whole.
4.) One Indian was to be appointed to the Viceroy’s executive council.
5.) Separate electorate was introduced. Muslim were allocated 8 seats British capitalist 6 sets,
landlords 2 seats and general electorate were allocated 13 seats out of total 27 non official seats
of total 68 seats in Imperial Legislative Council.
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6.)Muslim were also provided representation in excess to the strength.

The number of elected members in Imperial Legislative Council and the provincial Legislative
Council was increased. The electoral system that was introduced contained two divisions of
electorates; they are General electorates and special electorates. No universal franchise was
introduced. Only a class of citizen was qualified for voting which was almost a minority to the
total population of each electorate. Communal Representation introduced here was aimed at
dividing Hindu –Muslim to make them weaker.
The reform of 1909 was infect framed to confused moderate nationalist to dived the nationalists
rank and check the growth of unity among Indians and such the reforms of 1909 afforded no
answer to Indian Political problem.
The Act ushered in a new period of Indian history bringing about the end of Company rule in
India. The era of the new British Raj would last until Partition of India in August 1947 at which
time all of the territory of the Raj was granted dominion status within the Dominion of Pakistan
and the Union of India.

Very Short Questions

Q. 8. What do you understand by Indian Council Act 1861?

Ans. Indian Council Act 1861

A Bill known as the Indian Council Bill was introduced in the British Parliament by Sir Charles
Wood, who called it, is a “most important measure.” The Bill was readily passed by House and
finally receive Royal assent on August q, 1861 and came in force at the close of the year. The
main provisions of the Act may be summarized under the following sub- heads-
1. The provisions relating to the Central Legislative.
2. The provisions relation to the Central Executive.
3. The provision relating to the Provincial Legislatures.

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Q. 9. What do you mean by Communal Award 1932?

Ans. Communal Award

As the Indians could not arrive at any settlement Ramsay Macdonald gave his famous award
known as the Communal Award on 16th August 1932. The scope of this award was purposely
confined to the arrangements to be made for the representation of British Indian communities in
provincial legislatures. According to the Award elections to the seats allotted to Muslim,
European and Sikh constituencies will be by voters voting for separate communal electorates
covering between them the whole areas of a province. Special provision was to be a made for
excluded areas. Provision was to be new Constitution of India to allow the revision of electoral
arrangements after the lapse of 10 years with the assent of communities affected for the
ascertainment of which suitable means were to be devised. As regards depresses classes the
scheme was qualified voters of depressed classes were to vote in general election etc. It was
stated that the work of the determination of the constituencies was to begin soon number of seats
given to the various communities with a view to facilitate the work of the delimitation of
constituencies.

Q.10. Explain the term “The White Paper 1933?

Ans. The White Paper 1933

When the whole scheme regarding the future constitution of was thrashed out, the British
Government issued in March 1933 a small document known as the White Paper. It gave in detail
the working based of the new Indian Constitution with a diarchy at the Center and responsible
Government in the provinces. As was to expect the White paper was condemned by the Indian
public opinion. However, in spite of the opposition and criticism, the British Government went
on with its programmer.
In April 1933 a Joint Select Commission was appointed to examine and report on the
Government proposal as contained in the white paper. The committee consisted of 16 members
each from the House of Commons and the House of Lords and its Chairman was Lord
Linlithgow. The Committee invited representative from British India and Indian States. After
examining many witnesses and going through the Memoranda received from the Indian
Associations, the British India Delegations’, Sir Tej Bhadur Sapru, M.R. Jayakar and other
prominent individuals, the Select Committee submitted its report on 22nd Nov. 1934 Although it
did not alter the fundamentals as given in the White Paper, it recommended many Changes in the
structure of the provincial and Federal Legislatures and other matters also.

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UNIT - IVTH
Q. 1. Critically examine the system of diarchy in provinces as introduced by the
Government of India Act, 1919?
Ans. . Government of India Act, 1919
In 1917, His Majesty's Government made an important declaration calling for 'increasing the
association of Indians in every branch of the administration and the gradual development of
self-governing institutions with a view to the progressive realization of responsible government
in British India as an integral part of British Empire.' that resulted in the passing of 1919 Act by
the British Parliament.1919 Montague-Chelmsford Act was, in many ways, a path- breaking
legislation and granted many concessions to Indians including a limited responsible government.
The major objectives of the Act of 1919 were –
1. To make the Indian Legislature more representative;
2. To relax Central control over the Provinces; and
3. To set up a dyarchy system of government in the Provinces. Main
Provisions of 1919 Act:

Dyarchy in the Provinces

Responsible Governments in the Provinces were sought to be introduced. for the administration
of the Provinces. by introducing 'Diarchy' or dual government. The subjects of administration
were to be divided into two categories-Central and Provincial. The Central subjects were those
which were exclusively kept under the control of the Central Government. The Provincial
subjects were sub-divided into 'transferred' and 'reserved' subjects. The matters pertaining to
'transferred subjects' were exclusively to be administered by the Governor with reserved
subjects’ were to be responsibility to the legal Bicameral House an Central officials el
exception .

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Main Provision of 1919 Act

1. Diarchy in the Provenience

Responsible Governments in to Provinces were sought to be introduced, for the administration
of the Provinces, by introducing ‘Diarchy’ or duel government. The subjects of administration
were too divided into two categories-Central and Provincial. The Central subjects were those
which were exclusively kept under the control of the Central Government. The Provincial
subjects were sub-divided into ‘transferred’ and ‘reserved’ subjects. The matters pertaining to
‘transferred subjects’ were exclusively to be administered by the Governor with the aid of
Ministers responsible to the Legislative Council, while ‘reserved subjects’ were to be
administered by the Governor and his Executive Council, without any responsibility to the
Legislature.

2. Introducing of Separate Electorate

The Provincial Councils were enlarged and in each one of them, elected members, who
constituted 70 percent, dominated the officials. Thus, for the first time the Provincial Councils
had elected majorities. Separate electorates were introduced for the Muslims.

3. Government at the Centre

Diarchy was not introduced at the Centre. The Governor-General and his Executive Council
continued to be responsible only to the Secretary of State. The Governor-General could certify
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that a Bill, not passed by the legislature, was essential to the safety, tranquility or interests of
British India and thereupon it become law, after being essential to by the King-in-Council. The
Governor-General had the power to veto a bill or reserve it for the consideration of the Crown.

4. Bicameral Legislature
Bicameral Legislature means a legislature has to houses, the lower House and the upper house,
which had been named after Council of States (upper House) & Central Legislature Assembly
(lower House). The official majority came to an end and not officials elected majority was
introduced. The powers of the two houses were equal with the exception that the power of voting
was entrusted to the lower House.

5. Division of Power
The Act brought a relaxation of the Centre’s control over the provinces in administrative as well
as in legislative and financial matters. Ii divided the subjects of administration in to two
categories-central and Provincial. Provincial budgets were separated from the national budget of
the Government of India and the Provincial legislature could present its own budget and levy its
own taxes relating to the provincial sources of revenue.

6. Responsible Government
The Act devised a scheme for responsible government at the provincial level.

Criticism
1. In the opinion of the Congress leaders the Act of 1919 revealed the deep distrust of Indians
by the British and their unwillingness to share power with the subjects. In spite of the devolution
the powers to the provinces, the Government of India continued to rain responsible to the British
Parliament for the peace, order and good Government
2. The Act of 1919 did not satisfy the nationalist demand for full self-government, for the
Secretary of State for India held the ultimate control of the central and reserved subjects.
However, a concession was made to the demand for responsible government, though in a
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half-hearted manner. In the Provinces, part of authority was transferred to Ministers and to
elected majorities as an experiment in responsible government.
3. Despite the façade of representative institution at the Centre, the Governor-General continued
to exercise overriding powers. Bills passed by the Legislature could be vetoed or reserved for the
consideration of the Crown, by the Governor-General. Any Bill or/and grant, which the
legislature had made or refused to pass could be ‘certified’ by the Governor-General, and then it
was to have the same effects it had been passed by the legislature.
4. Electorates continued to be organized and mobilized on communal and sectional basis
5. The Act did not make any dent in the unitary and centralized system of government existing in
the country. The Governor General continued to be the ‘key stone’ of the entire constitutional
edifice.
6. The demarcation of subject was mad in such a manner that no decision of major nature could
be taken by the minister in charge of a transferred subject without involving some ‘reserved’
subjects.
7. Even within the restricted field of subjects ‘transferred to popular control’ the Governor
exercised the final and ultimate authority.

Q. 2. Discuss the federal features of the system of Government India by Govt. of

India Act, 1935.
Or
State the provisions of Government of India Act, 1935.
Or
What were the chief defects of the Government of India Act, 1935?

Ans. The Government of India Act, 1935

The Government of India Act, 1935, established a federal form of Government for India. Prior to
this Act, the constitutional structure of the Government was unitary wherein the Provincial
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Governments, derived their powers by devolution from the Central Government. They
discharged their functions subject to the authority of their respective Legislatures under the
superintendence, direction and control of the Governor-General-in-Council and ultimately of the
Secretary of State for India. The only sphere in which the Provincial Governments enjoyed some
measure of autonomy was the administration of 'transferred subjects. 'The Indian States were
autonomous within their own territories and their relations with the Governor-General-in-
Council were governed by the rule of paramount.
Federal Features of Government of India Act, 1935
The Government of India Act, 1935, established a federal system of Government. It was a 'very
elaborate and lengthy Act comprising 321 Sec. and ten Schedules- The main features of the Act
relating to federal system of Govt. are as under-
1. Establishment of an All India Federation
The Government of Indian Act, 1935provided for the establishment of an Indian Federation
composed of the Governor's Provinces and the Chief Commissioner's Provinces in British India
and such of the Indian States, as may voluntarily accede to it. The tribal and excluded areas were
also to be subject to the jurisdiction of the Federal Government of India, but they were not given
a representation on its various organs. The Governor's provinces and the Chief Commissioner's
Provinces were to join the Federation compulsorily while the princely States could enter the
federation voluntarily if their ruler signed an instrument of Accession. Thus, any State could
keep out of federation, if it so desired. Thus, the Act provided for an All India Federation. The
Indian States were under the complete control of Government of India whereas the Provinces had
some sort of democratic Government. The entry of the Provinces" in to the federation was to be
automatic while the Indian States were required to execute an instrument of accession to join the
Federation. The functions of Crown with regard to the Indian States were to be performed in
India by his representative who in fact was the Viceroy himself.
2. Division of Powers under the Indian Federation
The division of powers between the Federal Government and the Federating Units is a
characteristic feature of all the federations. In relation to the Provinces there was these types
division of functions and the subjects were divided into Federal, Provincial and Concurrent Lists.
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The Federal List contained in all 59 items which were exclusively the federal subjects.
The more important of these subjects were Defense, Foreign Relations including
Relations with Indian States, Extradition, Railways, Posts and Telegraphs, Foreign
Trade Shipping, Navigation, Explosives, Arms and Ammunition and Federal Services etc. The
matters which were of all-India interest and needed uniform policy were included in this List.
The Federal sources of revenue mentioned in this List included customs, salt, opium, income-tax,
succession duties, stamp and excise duties on certain items, corporation taxes, etc. The subjects
enumerated in the Provincial List were within the exclusive jurisdiction of the Provincial
Legislatures. The List contained matter of Provincial or local interest, such as education, land
revenue, Local-self Government, public health, police, prison, forests, irrigation, industries, etc.
Finally, the Concurrent List consisted of 54 items on which both Federal Legislature and the
Provincial Legislatures were competent to make laws.

3. Establishment of Dyarchy System in the Centre

The Government of India Act, 1935 introduced diarchy at the Centre and a responsible
government at the provinces. Certain Federal subjects were reserved in the hands of the
Governor- General to be administered by him with the assistance of three Councilors’ to be
appointed by him. In the administration of the other Federal subjects the Governor-General teal
to be aided and advised by a Council of Ministers whose number was not to exceed ten. In spite
of the composite character of the Ministry it was to be collective. The ministry was to be
responsible to the Federal-legislature.
4. The Structure of the Governments
Although many of the provisions of the Act never came into practical operation, yet the proposed
form of Governments at the center and in the provinces was as below
1. Federal Government
1. The Executive
It was to consist of the-Governor-General and a Council of Ministers. The Governor-General had
to act on the advice of the Council of Ministers except 'in matters which were reserved i.e., the
external affairs, defense, ecclesiastical affairs, administration of tribal areas and the matters
which were in his special responsibility. He could also legislate temporarily by Ordinance or
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permanently by an Act with respect to the reserved subjects or the subjects in his special
responsibility. On the advice of his ministers he could issue an Ordinance on any subject. In the
event of constitutional breakdown the Governor- General could assume all or any of the powers
vested in the federal authorities. The Governor-General had to act in two different capacities for
the Governor's Provinces and the Indian States. With respect to the former he was the Governor-
General while for the latter he was the Crown's representative.
The Crown's paramountcy over the Indian States was to be exercised not through the Federal
Government but directly through the Crown's Representative.
2. The Legislature
The federal legislature was to consist of- (a) The King, represented by the Governor-General (b)
the Council of State and (c) the Legislative Assembly.
The Council of State was to consist of 260 members, of whom 104 were to be the
Representatives of the States, 128 were to be directly elected by territorial communal
constituencies, 22 seats were assigned to small minorities, women and depressed classes and 6
were to be nominated by- the States. The Legislative Assembly was to consist of 375 members
of whom 125 were to be the representatives of the Indian States nominated by the Rulers of the
States and the remaining were to be sent after indirect election by the Provincial Assemblies. The
election was on communal basis and the method was proportional representation with single
transferable vote. The two houses were to have equal powers except in financial matters where
the Legislative Assembly could exercise more powers.
The Council of State was to be permanent house with one third of its members retiring at the end
of every second year. The normal duration of the Legislative Assembly was to be 5 year, unless
dissolved earlier.
“A most striking feature of the Central Legislature was its relationship with the
Governor-General In fact, the powers of the Governor-General in relation to the Legislature was
so overwhelming that the latter had hardly any power which could be claimed as its own. the
Legislature contemplated under the Constitution Act of 1935 was more a legislature by courtesy
than by its powers." It has been seen above that the Governor-General could himself exercise

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legislative powers to a large extent and could also prohibit the legislature from exercising its
legitimate powers by the exercise of his veto power.

The Federal Court

A Federal Court was set up at Delhi by the Act. "In fact, of all the institutions set up under the
Act, it was the Federal Court which proved to be the most successful in operation.''
5. The Provincial Government
The composition of the Government in the eleven Governor's provinces was to be as below-
1. The Executive
The executive consisted of the Governor and his Council of Ministers. The Governor was given
powers on the pattern of Governor-General i, e., some subjects were reserved for the Governor
and no advice was sought from the Minister in the exercise of these powers. Some of the subjects
were left on the special responsibility of the Governor where he was not bound by the Ministerial
advice and lastly there were some subjects on which he acted on the advice of his Ministers. Like
the Governor-General he could make an Ordinance or an Act on the subjects of his special
responsibility and on the advice of his ministers he could legislate through ordinance on any
subject. He could also exercise various legislative and financial powers at his discretion. In the
case of constitutional breakdown in the Province, he could by proclamation assume all powers
vested in or exercisable by any Provincial body or authority, except the High Court. "The
Governor's powers as a whole presented a formidable list seldom found in the case of an
executive head functioning under a responsible system of Government."
2. The Legislature
The composition of Legislature varied from province to province. Out of the eleven provinces
there were bicameral legislatures in six and unicameral in five provinces. The legislature was
called as Legislative Assembly.
Where there were two Houses, the Upper House was called as Legislative Council and the Lower
as Legislative Assembly. The members of the Assembly were directly elected by the people on
the communal basis or through various bodies and associations. Members of the Council were
elected by the general constituencies,

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Assemblies and some of them were nominated by the Governor. The duration of the Assembly
was normally 5 year. The Council was a permanent body. One third of its members being
renewed at the end of every third year.
The right of vote was restricted on the basis of economic and educational qualifications and only
about 14% of the total population enjoyed this right.
6. Abolition of the India' Council of Secretary of State
The Government of India Act, 1935 provided for the abolition of the India Council of the
Secretary of State and advisors were to be appointed in its place for his consultation and aid,
wherever the Secretary of State deemed it necessary.
7. The Home Government Lifted the Control over Indian Sphere
The Home Government lessened its control over Indian sphere due to the introduction 'of
Provincial autonomy in the provinces and responsible Government at Centre. The Governors and
the Governor-General were made strictly responsible to the Secretary of State, in the exercise of
their discretionary powers.
8. Subtractions from the Principle of responsible Govt
The Government of India Act, 1935, provided vial Seductions from the principles of responsible
Government as well as of Self-Government. Firstly, Indian Legislatures were denied of many
legislative powers and secondly, the Governors and the Governor-General were empowered to
over-ride their ministers and legislatures in certain circumstances.
9. Establishment of a Rigid Constitution
The Act of 1935 provided for a rigid Constitution, only British Government was competent to
amend it.
10. Establishment of Provincial Autonomy
In pursuance of the policy declaration of August, 1917, the Government of India Act, 1935
granted provincial autonomy. The control of outside powers was relaxed to a considerable
extent. .
Defects of the Government of India Act, 1935

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1. The power to amend the Constitution was not given in Indian hands. Ultimately Indians had
no control over the Government of their country,
2. People disliked the introduction of dyarchy at the Centre as they already had seen its evil in
the Provinces,
3. It depended upon the choice of Indian States to join the Federation or not.
4. The Indian States were given the privileged position in the Federation so they were serving
the British interests everywhere,
5. Indirect elections to Federal Assembly were against the canons of Democracy.
6. The ultimate control of the Secretary of State over the All-India Services was detested by the
Indian people,
7. Defense was consuming the lion's share of the budget but being a Reserved subject was not
controlled by Indians,
8. States Legislatures were filled by communal representation which was against the root of
Indian nationalism,
9. The safeguards, reservations and special powers placed to the Indian Ministers under the
constant visit and control of the executive which Indians never liked,
10. The discretionary powers of Governor reduced the Provincial autonomy to a farce.
11. The powers of Provincial Legislature were very much restricted. Upper Chambers were
made reactionary bodies.
It was for the above reasons that the Government of India Act, 1935, found favour from no
quarter. Lord Atlec remarked: "The keynote of the Bill is mistrust." Indian National Congress
condemned it for its conservatism. Indian National Congress held that, it did not envisage any
transfer of power into Indian hands. A critic observed the Act as "disgusting, poisoning and
offensive.

Q. 3. What are the main provisions of Indian Independence Act, 1947 . Explain
Its effect?
Ans. The Indian Independence Act, 1947

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With a view to give effect to the plan of Lord Mountbatten, the then Governor-General of India,
the British Parliament passed Indian Independence Act, 1947 on July, 18. The Act came into
force on 15th August, 1947. The main provisions of the Indian Independence Act, 1947, are as
Follows:
1. Creation of Two Dominions of India and Pakistan
The Act provided for the partition of India and establishment of two independent
Dominions-
India and Pakistan from August 15, 1947. The word "independent" signified the absence of any
external restraint. The 15, August was said to be the "appointed day".
2. Determination of the Territories of Two New Dominions
Clauses (2) of the Act defined the territories of the two new Dominions and made it possible to
bring about necessary adjustments in the existing boundaries. Clauses (3) and (4) provided for
the partition of Bengal, Punjab and Assam keeping in view the aspirations of the people of these
territories and fixing of the boundaries of these divided Provinces by the Boundary Commission.
The Dominion of Pakistan consisted of two non-contiguous partitions, West Pakistan and East
Pakistan which were severed from old India. It is important to note that the Act for the first time
brought about the division of India into two independent States on communal basis which was
hitherto unknown to the history of India.
3. Legislative Supremacy of the Two Dominions
The Governor-General of each Dominion was empowered to promulgate Ordinances to meet
emergencies as provided under the Government of India Act, 1935. Such ordinances were to
remain in force only for six months until superseded by an Act of the Dominion Legislature. But
the authority of provincial Government U/S. 93 of the Government of India Act, 1935 was done
away with. The provisions requiring the Governor-General or any Governor to act in his
discretion or exercise his individual judgment would cease to have effect from August, 15, 1947.
4. Constituent Assemblies of Each Dominions Granted the Status of

Dominion Legislatures
The Act provided that until a new Constitution was framed for each of the Dominions, the
Constituent Assemblies were to act as Dominion Legislatures and were to exercise all powers
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which were formerly exercised by the Central Legislature. This power was to be exercised by the
Constituent Assemblies in addition to their power of framing of a new Constitution for their
respective Dominions. This was indeed a unique feature which the Constituent Assemblies of
India and Pakistan were conferred under the Indian Independence Act, 1947 as compared to
other Dominions of the world.
5. Freedom from British Rule
The most epoch-making effect of the Act was that India no longer remained a dependency of
British Empire. Like other dominions, it now got the status of an independent nation. Thus, the
British period in India came to an end after nearly three and a half centuries of trading, two
centuries of political power and 130 years of general supremacy. After the coming into force of
the Act, the British Government had no control over the affairs of the Dominions of India and
Pakistan or part thereof.
6. Continuance of the Government of India Act, 1935 until the Framing of

a New Constitution by the Two Dominions

The Indian Independence Act, 1947 specifically laid down that the new Dominions shall
continue to be governed by the provisions of the Government of India Act, 1935 in so far as they
are consistent with Dominion Status. It empowered the Governor-General of each of the two
Dominions to make necessary omissions, additions or modifications in the Government of India
Act, 1935 and the Orders-in-Council, Rules and other Instruments made the render till March,
31, 1948. After that day, it was open to the Constituent Assemblies to modify or adopt the same
Act.
7. Termination of the Crown's Paramountcy
With the transfer of power to the Dominions of India and Pakistan in accordance with the Indian
Independence Act, 1947 the paramountcy and suzerainty of the British Crown over the Indians
and over the Indian States came to an end. Consequently, all treaties and agreements between
His Majesty and the rulers of the Indian States and all functions exercisable by His Majesty with
regard to Indian States and their rulers, and all powers, grants, rights, authority or jurisdiction of
His Majesty over Indian States lapsed from August 15, 1947. The Instrument of Accession
relating to Dominion of India laid down that the acceding States have agreed to give to the
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Legislature and Authorities of the Dominion of India, jurisdiction over matters, namely, defense,
external affairs and Communications.

8. Agreement with Tribes of N.W.F.P.

The Act provided that agreements with the tribes of the North-West Frontier Province of India
were to be negotiated by the successor Dominions.
9. Office of the Secretary of State for India Abolished
The constitutional position of British Government in relation to India having been altered from
August 15, 1947, their responsibility as regards the Government of the territories included in
British India ceased and the sovereignty of British Crown over Indian States came to an end.
Consequently, the office of the Secretary of State for India and his advisers was abolished by the
Indian Independence Act, 1947.
10. Continuance of the Civil Service of the Crown under the Government of
the New Dominions
Sec. 10 of the Act contained that the persons who were appointed by the Secretary of State in
Council to the Indian Civil Service were to continue on and after August 15, 1947 under the
Government of either of the new Dominions or any Province or part thereof and their conditions
of service in respect of remuneration, leave, pension, tenure and rights relating to disciplinary
matters, etc., could not be altered to their detriment.
11. The Governor-General for Each Dominion and His Powers
The Act provided that each of the two Dominions of India and Pakistan ,was to have a
Governor-General appointed by the King for the purpose of the Government of the Dominion.
The Act also provided that same person could be appointed Governor- General for both the
Dominions. Accordingly, Lord Mountbatten was appointed as the first Governor-General for the
Dominions of India and Pakistan, both. The main function of the Governor-General was to bring
into operation, the machinery of Indian Independence Act, 1947. He had the task of carrying on
for the time being on behalf of the new Dominions or on behalf of any Province, certain vital
services such as Railways and other communications, Reserve Bank, the Monetary and Fiscal
System, Defense and the like, which were hitherto being operated in the interests of whole of
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India. The right of the King to veto or to reserve law for his pleasure came to an end with the
passing of the Government of India Act, 1947 and the Governor-General was given the right of
assent in the name of His Majesty to any law to the Dominion Legislature made in its ordinary
legislative capacity.
12. Lapse of the Instrument of Instruction
Sec. 18 of the Act provided that the existing Instruments of Instructions to the Governors and
Governor-General shall lapse with the coming into effect of this Act The reason being that the
Governors and Governor-General were now required to act as the Constitutional heads in future
and therefore instruments of instructions were no longer necessary for them.

Effects of the Indian Independence Act, 1947

1. The Indian Independence Act, 1947 marked the end of ninety years old British rule in India.
The British Crown severed its paramountcy at one stroke. The Indian States regained their status
which they enjoyed prior to the British sovereignty.
2. Sec. 6 (2) of the Act vested in the Legislature of either Dominion, the power to repeal or
amend-any Act of British Parliament existing or future one. Even the Indian Independence Act,
1947 itself could be repealed or amended under this clause of the Act.
3. By this Act, the British Parliament renounced its sovereignty once for all and no further
imperial legislation was necessary for validating the future Constitution of India or Pakistan, as
the case may be.
4. The Dominions of India and Pakistan were not to derive their authorities from British Crown.
The officers of these Dominions were to take oath of allegiance not to the British Crown but to
the Constitution of their respective Dominions.

Q. 4. Explain the Native States and development of Paramountcy?

Ans. Native States and development of Paramountcy
Introduction
It would be instructive to note at the outset of this chapter, the meaning and scope of the terms
‘Paramountcy’ and ‘Native State’. The internationally standard dictionaries like Webster
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Universal Dictionary define ‘Paramountcy’ as ‘The quality of being Paramount’ or ‘The

condition of being Paramount’. Now the question that emerges is ‘what is ‘Paramount’?
Paramount means ‘Having supreme authority of jurisdiction’ or ‘above all others in rank, order
or jurisdiction.’
The British Paramountcy in India obviously connotes that the British had established such a
power in India which was exercising supreme authority or jurisdiction over the Indian Native
States, or which was above all other States in India in rank, order and jurisdiction.

What is the Native State ?

Sir William Lee-Wamer, a British Political Officer) and a well-known authority on the British
Paramountcy over the Indian Natives, very well defines the nature of ‘Native States’ in India. He
says, “A Native State is a political community, occupying a territory in India of defined
boundaries and subject to a common and responsible ruler, who has, as a matter of fact, enjoyed
and exercised, with sanction of the British Government, any of the functions and attributes of
internal sovereignty. The indivisibility of sovereignty does not belong to the Indian system of
sovereign States.”
Sir Lee- Warner goes on elucidating the nature and the limits of the sovereignty enjoyed by the
Indian Native States, “No Native State in the interior of India enjoys the full attributes of
complete external and internal sovereignty, since none is left either the power of declaring war or
peace or the right of negotiating agreements with other States, but sovereignty of the Native State
is shared between the British Government and the chiefs in varying degrees. Some States enjoy
substantial immunity from interference in nearly all functions of internal administration, while
others are under such subjections that the Native sovereignty is almost completely destroyed.”
The Evolution of British Paramountcy Before dealing with the relations between the Kolhapur
State and the British Paramountcy, it is imperative to know how the British established their
Paramount Power in India and what was the nature of that Paramountcy. It should be noted at the
outset that the establishment of the British Paramountcy was a product of gradual political and
military activities of the British in the 18 and 19centuries and it took several decades to acquire

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its final shape. An official announcement in days of Lord Lytton aptly says, “Paramountcy is a
thing of gradual growth... shaped partly by conquest, partly by treaty and partly by usage.”
Sir William Lee-Warner, in his treatise on, ‘The Native States of India ‘has phased out the three
stages of the British relations with the Indian States they are as follows:
1. The Ring Fence Policy: 1757 To 1813
2. The Policy of Subordinate Isolation: 1813-l857
3. The Policy of Subordinate Union: 1857 on words.

The Ring Fenced Policy

The Battle of Plessey in 1757 laid the foundation of the British Empire in India. By then, the
British had already surpassed the Portuguese and the French in their scramble for India and
acquired a status of No. 1 European Power in India. At the end of the 18* century they had
established themselves as one of the major political and military powers, defeating many Mughal
and Maratha feudatories in the North as well as independent rulers like Tipu in the South. Soon,
the Peshwa, the head of the Maratha confederacy, was asked to enter into subsidiary alliances of,
Lon! Wellesley. However, it should be noted that the British did not make any haste to assert
their Pramountcy over the Indian powers that they had defeated. According to Sir Lee-Warner
they preferred to stay within the ring-fence of their dominion. He writes, “Beyond the ring-fence
of the company’s dominion, they avoided intercourse with the chiefs in hope that the stronger
organizations would absorb the weaker and became settled States” Thus though on certain
occasions, the British had to interfere in the affairs of Indian Princes and take some aggressive
steps, they generally preferred to stick to their policy of non-intervention and avoid the
annexations. Lee-Wamer further elaborates the point, “There is the battle of Buxar in 1764, when
Oudh lay at the feet of Major Munro, but was not annexed; the Rohilla war, after which Warner
Hastings conferred the conquered territories on the Wazir of Oudh; the first Maratha war, which
closed after the victorious march to Goddard from the banks of the Jamna to Ahmedabad, in the
restitution of Bassein and the restoration of the ‘Status quo’ by the Treaty of Sal bai, dated the
17thof March 1782; and, finally, four Mysore wars, ending with the fall of Seringapatamin 1799,
from which the allies of the British derived the main advantage, whilst the former Hindu dynasty

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of Mysore was gratuitously raised from the ashes of HaidarAli’s and Tipu’s dominion.”This
phase is marked with two more characteristics. First, all the treaties except that with Mysore
were negotiated and concluded on the basis of equality and reciprocity. The British did not claim
any Paramountcy over the Indian States, at least those which were not subdued. Secondly, each
of their treaties" guaranteed in a mostsolemn manner the absolute authority of the Indian ruler
over his subjects and did not approve any British claim to intervene in their internal affairs.

The Policy of Subordinate Isolation

During this phase, from 1813 to 1857, the British made almost all the Indian States subordinate
to their power, by compelling them to enter into subsidiary alliances with them. The Indian
Princes were put under obligation to accept the British Paramountcy. In the times of Lord
Hastings (1813 - 1823) more than 300 Indian States from Central India, Kathiwar and Rajputana
were brought under the system of the subsidiary alliances. Though he was against the policy of
annexation he strongly enunciated the policy of complete subordination and isolation of the
States. During his regime, the Peshwa Power was completely destroyed and his feudatories like
the Scindias and Holkars came automatically under British Paramountcy. This policy reached
its climax in Lord Dalhousie’s period i.e. from 1848 to 1856. He was a champion of the British
imperialism. He defeated the Sikhs and annexed their State. He sent the British army and
conquered the south of Burma. Applying the Doctrine of Lapse he annexed the States of Satara,
Nagpur, Jhansi, Jaipur, Tanjore under the pretext of misrule, and confiscated the remnant of
Oudh. He even stopped the pensions of the Princes of erstwhile States such as he did in episode
of Nana saheb Peshwa.

The Policy of Subordinate Union

The Mutiny brought about the end of the Company’s rule and inaugurated a new era of direct
rule of the Crown. The British now abandoned the policy of subordinate isolation and substituted
a new one i.e. the policy of subordinate union. No doubt, the Indian States were to remain
subordinate to the British power, but they were not to be kept isolated. On the contrary they were
to be linked with some common bonds. They were to be treated as friendly allies and trusted in

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the times of difficulties. It should be noted that during the Mutiny the majority of the Indian
Princes had remained loyal to the British cause and some of them even gave essential military
assistance at critical junctures

One Charge’ Theory of Lord Canning

In the process of gradual weakening of the States the British evolved ‘One Charge’ theory which
was enunciated by Viceroy Lord Canning that India under the direct rule of the British and India
under the rule of toe Princes constituted eventually one political unit the Declaration of Canning
in 1862 says that the Crown stands forward ‘the unquestioned Ruler and Paramount Power in all
India’. Thus the whole of India was placed under ‘One Charge’ and the Indian States became
transformed into ‘Feudatories’ of the Crown. Now the States were put under the suzerainty of the
Crown. The Princes had no other option but to accept the reality. This was a silent constitutional
revolution, which had been brought about by the transfer of power to the Crown as a Paramount
Power.
Doctrine of Interference
The Paramount Power of the Crown was represented by the Government of India which soon
shouldered a new sense of responsibility of set righting the abuses in the State. We have seen that
Lord Canning had declared in 1860 that the Government had the right of intervention and could
interfere in the internal affairs of any State. Sir Lee-Wamer while explaining the scope of the
Right of Intervention writes, “The right of intervention is not confined to the episode of open
rebellion or public disturbance. The subjects of the Native States are sometimes ready to endure
gross oppression The Paramount Power expected that the Indian Princes would govern their
State with sense of justice and welfare of their subjects.

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Short Questions

Q. 5. Explain the composition, working and major committees of the Constituent

Assembly of India?
Ans. THE CONSTITUENT ASSEMBLY OF INDIA
The Constituent Assembly of India was set up as a result of negotiations between the Indian
leaders and members of the British Cabinet Mission. The constituent assembly was elected
indirectly by the members of the Provincial legislative assembly. The Congress secured an
overwhelming majority in the general seats while the Muslim League managed to sweep almost
all the seats reserved for Muslims. The Congress had majority of 60%. There were also members
from smaller parties like the Scheduled Caste Federation, the Communist Party of India and the
Unionist Party.
It first met on December 9, 1946 in Delhi, while India was still under British rule. It originally
included the provinces that now compose Pakistan and the representation of the princely states of
India. In June 1947, the delegations from the provinces of Sindh, East Bengal, Baluchistan, West
Punjab and the North West Frontier Provinces withdrew in order to form the Constituent
Assembly of Pakistan in Karachi.
The Constituent Assembly took almost three years (two years, eleven months and seventeen days
to be precise) to complete its historic task of drafting the Constitution for Independent India.
During this period, it held eleven sessions covering a total of 165 days. Of these, 114 days were
spent on the consideration of the Draft Constitution.
As to its composition, members were chosen by indirect election by the members of the
Provincial Legislative Assemblies according to the scheme recommended by the Cabinet
Mission.
(i) 292 members were elected through the Provincial Legislative Assemblies
(ii) 93 members represented the Indian Princely States; and
(ii) 4 members represented the Chief Commissioners Provinces.

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The total membership of the Assembly thus was to be 389. However, as a result of the
partition under the Mountbatten Plan of 3 June, 1947, a separate Constituent Assembly was
Set up for Pakistan and representatives of some Provinces ceased to be members of the
Assembly. As a result, the membership of the Assembly was reduced to 299.
On 13 December, 1946, Pandit Jawaharlal Nehru moved the Objectives Resolution. The
Resolution was unanimously adopted by the Constituent Assembly on 22 January 1947. Late in
the evening of 14 August, 1947 the Assembly met in the Constitution Hall and at the stroke of
midnight, took over as the Legislate Assembly of an Independent India.
On 29 August, 1947 the Constituent Assembly set up a Drafting Committee under the
Chairmanship of Dr. B.R. Ambedkar to prepare a Draft Constitution for India. While
deliberating upon the draft Constitution, the Assembly move, discussed and disposed of as many
as 2,473 amendments out of a total of 7, 635 tabled.
The Constitution of India was adopted on 26 November, 1949 and the hon’ble members
appended their signatures to it on 24 January, 1950. In all, 284 members actually signed the
Constitution.
The Constitution of India came into force on 26 January, 1950. On that day, the Assembly
ceased to exist, transforming itself into the Provisional Parliament of India until a new
Parliament was constituted in 1952.
Dr. Sachchidananda Sinha was the first President (temporary Chairman of the Assembly) of the
Constituent Assembly when it met on December 9, 1946. Dr. Rajendra Prasad then became the
permanent President of the Constituent Assembly, and would later become the first President of
India. The Vice President of the Constituent Assembly was Professor Harendra Kumar
Mukarjee.

Q. 6. Write a Short note on Cripps Mission 1942?

Ans. Cripps Mission 1942
The British Government was placed in an awkward situation Japan’s entry in to war in Nov.
1941 and its advance towards the East threatened the security of India. Japan’s rising in early
stages of war inspired Indians to seize an opportunity to throw off the British yoke and not

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support the British Government in their war-efforts. Eminent Congress leaders like Pandit Nehru
and Vinobha Bhave were arrested and imprisoned.
Greatly perturbed by the Japanese menace to India’s eastern frontiers, the British Prime Minister,
Winston Churchill made an announcement in the House of Commons on March 11, 1942 that the
British War Cabinet had decided to send one their members, Sir Stafford Cripps to India with
some constitutional proposals of His Majesty’s Government to tackle the Indian problem. By
personal consultation with Indian leaders, Sir Cripps was to satisfy himself that the proposed
constitutional proposals would represent a just and final solution of the Indian problem.
During his twenty days stay in India, he had a series of negotiations with the Indian leaders and
made all possible efforts to make his mission a success but unfortunately he had to go back
disappointed.

Q.7. Write a short note on Simon Commission?

Ans. Simon Commission
The preamble to the Government of India Act 1919 itself had made it clear that dyarchical from
of Government introduced by the Act was to be for a transitional period and that it was merely an
experiment and not the beginning of a well-defined Constitution. Section 84-A of the Act further
contained a specific provision for the appointment of a Commission after ten years to review the
working of the system of Government. But ever increasing agitations in the country and the
strengthened position of Swarajists in the legislatures compelled the British Parliament to
appointment of the Royal Statutory Commission two years earlier than it was scheduled. The
British Parliament announced the appointment of the Statutory Commission on Nov. 1927 to
enquire into the working of the Government of India Act 1919. This Commission consisted of
seven members of the British parliament including Sir John Simon as its Chairman.
The appointment of an all- white Commission was strongly opposed by the Indian leaders. The
total exclusion of Indian element from the Commission was deeply resented by all parties
including Liberals the League and the Congress and they unanimously decided boycott the
Simon Commission. Consequently the Commission which landed at Bombay on Feb. 3, 1928
and toured the country with the assistance of a few bureaucrats’ in provincial Legislature was

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greeted with complete hartals, black flags and loud slogan of Simon go back. The legislative
Assembly passed a resolution against the Commission and the whole of India was ablaze with
indignation. The Indian leaders reiterated their demand that All British Commission had no right
to determine the future Constitution of India. Some of them proposed the setting up Round Table
Conference in place of Statutory Commission.

Q. 8. Discuss the Interim Government?

Ans. Interim Government
The Cabinet Mission plan also contained a provision for setting up a short-term interim
government. After the failure of care-taker government a Congress dominated government under
the leadership of Nehru was sworn in on September 02, 1946. Muslim League also joined the
government on October 26, without giving up its Direct Action Programmer. In July 1946,
elections to the Constituent Assembly were held and the Congress and League were returned
with an overwhelming majority. The League refused to attend the Cabinet Assembly which had
started its functioning, from December 09, 1946.
The programmer of ‘Direct Action” inaugurated by Muslim League transformed the whole of
Indian scene to communal riots on an unprecedented scale. Large scale Muslim attacks began on
the Hindus at different Muslim dominated parts of India. Thousands were killed. The widespread
riots and massacres changed the views of the Interim government led by Nehru and they had
began to think in terms of two dominions.
Prime Minister Attlee who came to power in Great Britain, after IInd world war, made a speech
in the British Parliament, and fixed 1948 June as deadline for the transfer of power to Indians,
whether as a whole or in some areas or in such other way as may seen reasonable for the best
interest of the Indian people. Viceroy Wavell was replaced by Mount Batten who had given
plenipotentiary powers and charged with the task of transferring power to India.
Mountbatten after discussions with the Congress leaders and convinced them that the only
alternative was the partition of India. This agreement has come to be known as the ‘3rd June
plan’ or “Mountbatten plan”. The 3rd June Plan of 1947 included the principles:
1) Principle of partition of India was accepted by British Government.

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2) Successor governments would be given dominion status.

3) Implicit right to secede from the British common wealth.
The Governor-General announced that the transfer of power would take place by August 15,
1947. This Mount Batten Plan became the basis of Indian Independence Act 1947 which ratified
the British Parliament on July 18 and implemented in 15th August 1947.

Very Short Questions

Q. 9. What do you mean by "The Shimla Conference"?

Ans. The Shimla Conference
To create a proper atmosphere for the discussion of the Wavell plan, all the political leaders in
prison were released. The Conference was to be held at Shimla on June 29, 1945, to which
political leaders representing various shades of opinion were invited to attend. On 1st August,
1945, Lord Wavell convened the Conference of the Provincial Governors to take stock of the
political situation in the country. Soon after, general elections to the Central and the Provincial
Legislatures were announced. In the meanwhile, in the United Kingdom, the Labor party had
become victorious in the general elections. Consequently, there was further assurance from Lord
Wavell that the British Government was determined to do its utmost to promote the early
realization of self- movement in India. After much discussion; the Congress Party decided to
Contest the elections. The Congress secured almost all general and a few Muslim seats. Mr.
Attlee, the Labor Prime Minister, issued a statement, after the study of election results in India.
In that statement he clearly admitted India's right to self-determination. Consequently, a Mission
of the cabinet comprising of high-ranking Cabinet Ministers was sent to India.

Q. 10. Write short note on "The Mountbatten Plan."?

Ans. The Mountbatten Plan
The Mountbatten Plan was published on June 3, 1947. After emphasizing the matter of
agreement amongst the Indian Parties and the intention of the British Government of not

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attempting to frame any ultimate Constitution of India, the plan laid down the following
procedure-
1. The Provincial Legislative Assemblies of Bengal and Punjab were to meet in two parts, one
representing the Muslim majority districts, and the other, the rest of the provinces;
2. The members of the two parts were empowered to vote on the question whether or not the
provinces were to be partitioned. If a simple majority of either part decided in favor of partition,
partition would take place;
3. The Legislative Assembly of Sind was to take its own decision at a special meeting;
4. In the case of the North Western Frontier province a referendum was to be held;
5. The Muslim majority district of Sylhetvns to decide by a referendum whether it would
Join East Bengal or remain in Assam. That the policy provided for the creation of a Boundary
Commission to settle the details of the boundary in case partition was decided upon. The plan
was accepted by the Muslim League on June 9,1947, and by the All India Congress Committee
on June 15,1947. It was decided that Bengal and Punjab were to be partitioned. West Bengal and
East Bengal were to join as a new Constituent Assembly: Sind and North Western Frontier
Province as well as Sylhet decided to join Pakistan.

Q.11.Write short note on "Gandhi-Irwin Pact (Delhi Pact)"?

Ans. Gandhi-Irwin Pact (Delhi Pact)
On February 14, 1931, Mahatma, Gandhi wrote to Lord Irwin seeking an interview in order to
discuss the political situation. The Viceroy readily agreed and negotiation began forthwith on
17th February 1931. They met six times at vice regal House until at last on the morning of 5th
March 1931, the agreement was reached. According to the agreement
1. The Government agreed to
a. Release political prisoners but not those convicted of violent acts or the soldiers who
refused to fire in Peshawar-
b. withdraw its special ordinances;
c. remit certain fines imposed on recalcitrant villages:
d. Allow certain villages to manufacture salt for their own use.
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2. Picketing was to be allowed but only within the limits permitted by the ordinary law, and
Discrimination against British goods was to cease,
3. In return for these concessions, the Congress agreed to stop civil disobedience and
participate in the next Round Table Conference.

Q. 12. What do you mean by First Round Table Conference?

Ans. First Round Table Conference
When the Simon commission Report was condemned by the Indian people, the British
Government called a First round Table Conference in London. The Conference met in London in
Nov. 1930. The Government appointed safe men belonging to the other parties, communities and
interest to present India, because the Congress Leaders were in jails. Representatives from the
Indian States were also invited to participate in the deliberations which included the personalities
Like Sir Mirza Ismail and the Maharaja of Bikaner. There were lengthily discussions on the
question of the future form of the Government of India. Ultimately three basic principles were
settled and accepted by the British Government. The form of the new Government of India was
to be an All India Federation in which the British Indian Provinces and the Indian states
Were to join. Subject to such reservations and sale-guards as might be considered necessary for
the transitional period, the Federal Legislature Provinces were to be given autonomy in their own
affairs.
Q.13. what are the provisions of the Government of India Act, 1915?
Ans. Provisions of Government of India Act, 1915
It contained the following provisions -
1. The Act deprived the High Courts of its original jurisdiction in any matter concerning
revenue. The effect of this provision was that in its appellate side it could exercise its
jurisdiction over matter concerning revenue but in its original side it could not.
2. Another important change was that the Act exempted the Governor General, the
Governors, the Lieutenant Governor General, Chief Commissioners and the members of
the Executive Council of the above and also the Minister from the original jurisdiction of

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the High Court for anything consular ordered or done by-any of them in their official
capacity,
3. The Act also provided that a written order of the Governor- General in Council could
protect any person for the act he has done according to the order in any civil or criminal
Proceedings in any High Court on its original side. However, this exemption was not
extended to any European British subjects,
4. Under this Act, the High Courts were to apply in the exercise of their civil jurisdiction the
personal laws or customs if both the parties were subject to the same personal laws or
customs, otherwise, the law of the defendant.

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