lord Cornwallis to minimizing conflicts by judicial reform

Dedicated to Our honorable teacher__ M B Hossain Galib Lecturer: Department of Law City University, Bangladesh Acknowledgement We express the deepest gratitude to the Almighty Allha for give us an opportunity to bring this assignment to our honorable teacher ‘M B Hossain Galib’ the department of law, City University. And for which we had to work ceaselessly for many days. We are glad that at last it has been submitted. We hope it will be appreciated for eyes merits. We are not a brilliant student but we have tried our level best to make this assignment an acceptable beheld of ready reference. However, we are grateful to our honorable teacher who helped us a lot by giving suggestion in regard of doing this assignment. Especially we would like to thinks to our younger brother and then we also would like to thinks to all of my friends, well-wisher and the other whose valuable words have inspired our to fulfill this assignment successfully. This assignment deserves more to be added with it but the space is a bar. I have made humbly possible Endeavour to arrange thing analytically. In spite of care and caution, the unwilling mistakes may raise their head here there. For that, we beg your pardon. Introduction Lord Cornwallis, who succeeded Warren Hastings, came to India in September 1786 and continued as Governor General up to 1793. Accepting his appointment as Governor General, Cornwallis laid down two conditions, he will have power to override his council and office of the Governor-General and the Commander-in-chief will be united in one person. The conditions laid down by Cornwallis were accepted and he became the Governor-General of India under the authority of the Board of Control and Court of Directors. Before Lord Cornwallis came in India during 1726 to 1775 to follow many cases namely: Rama Kamti case, Shimpy’s case, Arab Merchants case, Pagoda Oath case, Raja Nand Kumar case, Kamal Uddin case, The Patna case, Cossijurah case, Saroop Chand case, Radha Charan Mitra’s case etc, which is make conflict between Governor General and courts. After the Battle of Plassey in 1757, the East India Company held the administrative and judicial powers under itself of Bengal, Bihar and Orissa. The jurisdiction of mofussil was completely under the Company. The judicial organization provided by the Company in moffusil was called the Adalat System whose initial milestone was laid down in Bengal with Warren Hastings as the Governor of Bengal. With the Regulating Act passed in 1773, Warren Hastings was made the Governor General of all the British territories in India and the reforms of 1774 and 1780 were passed. The Company was dissatisfied with the plan of 1780 because it had separated the revenue and judicial functions, thus proving to be costly. Accordingly, the Directors advocated a merger of the two functions on the grounds of simplicity, efficiency and economy. Lord Cornwallis assumed the role of Governor-General of the Company in 1786 and continued till 1793. Specific Mission of Cornwallis He was directed to take up three specific matters, one of them being reforms of the judicial system. The other tasks were resolving the problem of land revenue and improvement in the administrative machinery. During his tenure, he made significant and far-reaching reforms in the judicial administration, some of which constitute the foundation of the present legal system. The reforms were primarily made in three stages: first in 1787, then in 1790 and, finally in 1793. Judicial Plan of 1787 The main feature of this plan, as previously stated, was that the revenue, judicial and magisterial functions would vest in one person, the Collector who was in charge of each district. Firstly, Lord Cornwallis reduced the number of districts from 36 to 23. Only the East India Company’s English servant could be appointed to the said post. The Collector was responsible for the collection of land revenue and to decide all cases relating to revenue because of which his salary was increased.   His revenue functions were confined to the revenue court known as the mal adalat. Appeals from mal adalat went to the Board of Revenue at Calcutta and finally to the Governor General. He was to act as the judge in the Moffussil Diwani Adalat of the district which was the court of original jurisdiction of civil justice in a district. As the sole judge, he had full powers to decide all types of disputes. Appeals lay to the Sadar Diwani Adalat at Calcutta and further to the King-in-Council depending on the value of the suit. In order to assist the Collector in deciding civil cases, a Registrar was appointed in each adalat. Registrar was given power to handle decide cases up to rupees 200 and orders passed by him became valid when it were signed by the judge of mofussil adalat. The magistrate got power to hear the cases against the Englishmen who committed crimes against Indians, in this case magistrate made inquiry and he felt that there is ground for trial, he would send the Englishman accused to the Calcutta for trial and if Indian complainant was poor, the government paid all the expenses of traveling to Calcutta. The Collector was also given some magisterial powers. As a Magistrate, he was empowered to arrest, try and punish criminals in petty offences. In the case of graver offences, accused was sent to the nearest Moffussil Nizamat Adalat for trial and punishment. In view of the progressive policy effecting separation between judicial and executive functions in 1781, the scheme of 1787 was a retrograde step in the administration of civil justice. The judicial system of 1787 was inherently weak as power was concentrated in the hands of the Collector and there was no effective method to check cases of oppression and injustice. Judicial Plan of 1790 In 1787 when Cornwallis introduced reforms in the civil and revenue courts, he purposely avoided introduction of any major reforms in the criminal courts. It seems that he wanted more time to examine the functioning of the criminal judicature and its role in suppressing crimes. In his assessment, he realized that system of administration of criminal justice was extremely defective and futile. The administration of criminal justice was entirely concentrated with the Muslim officers who were not supervised. The Nawab controlled the entire criminal judicature and was not answerable to anybody. The Moffussil Faujdari Adalats had wide powers to inflict punishment which made them tyrannical. The proceedings in these courts were extremely dilatory and there was absence of any connection between the severity of the crime and its punishment. The judges were paid meagre salaries and lacked security of tenure, contributing to corruption. With the view of curing these defects, Cornwallis introduced the reforms of 1790 to radically change the administration of criminal justice. The most outstanding feature of this plan was the elimination of the authority of the Nawab from the criminal judicature. The responsibility of administration of criminal justice was given to English servants of the Company, yet the Muslim law officers were to be retained as advisers to the courts. There were three levels of courts in this system. At the lowest rung were the Magistrates in districts who had the same functions as under the plan of 1787. Above them were the Courts of Circuit which were established in four divisions. These replaced the Moffussil Faujdari Adalats and consisted of two servants of the Company who were assisted by the Muslim law officers. The ultimate criminal court was the Sadar Nizamat Adalat which was shifted from Murshidabad to Calcutta. The Nawab was divested of his control over the Adalat and the Governor-General and members of the Council were its judges. The new system was a great improvement over the pre-existing system. The scheme had been devised on the principle of checks and balances to ensure trials were conducted impartially. The Magistrates were to discharge their functions under the control of Circuit Courts and these Courts were empowered to try criminal cases but final orders in serious offences were to be passed by the Sadar Nizamat Adalat. Yet, strains began to appear in the system, thereby calling for adjustments from time to time in the form of further reforms. Further Reforms up to 1793 One of the limitations of the plan of 1790 was the excess of work in the Circuit Courts as the number of courts was small for the area. So, to reduce the arrears of work, Cornwallis gave some more powers to Magistrates in 1792. Other reforms included provisions for allowance to prosecutors and witnesses who came to the courts and payment of a small amount to the convicts on their release from jail for meeting their necessary expenses for one month to prevent their relapse into crime.   The major reform by Cornwallis was that of 1793 which has been analyzed in details. JUDICIAL REFORMS OF 1793 The plan of 1790 as well as further reforms mainly focused on the criminal judicature. In due course of time, Cornwallis realized the defects of the 1787 scheme and thus, advocated the need for major changes in the civil and revenue set-up. This was because under the 1787 plan, the Collector, who was vested with so many powers, became an autocrat. His main function was the collection of land revenue on which his future prospects, promotion and remunerations depended. This made him neglect his judicial functions. He also suspended the work of the mal adalats whenever it interfered with the work of revenue collection. There was no adequate safeguard to check against the misuse of power by the Collector which led Cornwallis to believe that fusion of revenue and judicial functions was a major impediment to development of the country. This led to the inception of the plan of 1793 which is considered as a defining moment in the development of the Indian legal system. For reasons aforementioned, Cornwallis regarded the union of executive and judicial functions as pernicious. Thus, Regulation II of 1793 separated the two functions by abolishing mal adalats and transferred its suits to the Moffussil Diwani Adalats. The Collector was entrusted only with the collection of revenue and the ordinary civil courts were empowered to try civil and revenue cases. Section 10 of Regulation III made all executive officers including the Collectors amenable to the Diwani Adalats for their official acts and it further made them personally liable. Prior to this, the only remedy was the lengthy method of petitioning the Governor-General and Council at Calcutta. Therefore, this eradicated the notion that the officers could transgress law and commit oppression with impunity. Moreover, for the first time, the liability of the government for its wrongs and for the wrongs of its officers committed during the course of their duties was recognized, thus making the government more responsible towards the people. Before 1793 reforms, the only remedy native Indians had to recover their claims against the British was to file a case in the Supreme Court at Calcutta which practically amounted to denial of justice due to the heavy expenses involved. To redeem this inequitable situation, the Diwani Adalats were given power for not allowing any British subject to live beyond 10 miles from Calcutta, unless they executed a bond rendering themselves amenable to adalats in all civil suits. The civil courts were also reorganized. The Sadar Diwani Adalat was the highest court in the judicial hierarchy. Apart from hearing appeals, it exercised the functions of supervision and inspection over lower adalats and was authorized to receive charges against the judges of those courts. Till 1793, the only appellate court was the Sadar Diwani Adalat at Calacutta which was hardly accessible to people. To rectify this situation and increase efficiency, Regulation V instituted four courts of appeal at Patna, Dacca, Calcutta and Murshidabad. Regulation III of 1793 further re-organized the Diwani Adalats to make them more efficient, impartial and independent. Steps were also taken to establish subordinate civil courts to decide minor cases. The Diwani Adalat could refer suits up to the value of Rs. 200 to the Court of Registrar, while the Munsiffs could try suits up to the value of Rs. 50. The scheme of criminal judicature introduced in 1790 was left intact in 1793 subject to a few changes. The magisterial functions were transferred to the judges of Moffussil Diwani Adalats and the Courts of Circuit created in 1790 were merged with the Provincial Courts of Appeal established in 1793 to create four Courts of Appeal and Circuit. Court fees was also abolished to make justice more easily accessible. Legal profession came to be regulated as only persons having legal knowledge and good reputation and character could be appointed as pleaders. In view of the significant role played by native law officers, certain rules were made to ensure that those appointed were men of integrity, well-versed in laws and they were given security of tenure to prevent misconduct. There were also reforms to legislative methods. Till then Regulations were issued without any prescribed uniform system. But the reforms provided that each Regulation should have a preamble and title and should be produced in the form of sections and clauses. Further, Regulations were to be properly recorded, printed, published and circulated regularly to be made available to the people and authorities. Therefore, the features of the scheme prove that it was extremely logical, comprehensive, well-planned and foresighted. It is apparent that the plan worked well because of the separation between the judiciary and executive, establishment of a large number of courts, and introduction of proper supervision and control over each court creating a system of checks and balances. It ensured that a position of authority was not misused and the protection of the system was not denied to any individual. Thus, Cornwallis skillfully substituted the ‘rule of law’ for the rule of individual discretion of government officials. Despite the fact that the new judicial machinery was designed to ensure impartiality and efficiency, yet it became cumbersome and over elaborates. The provision for two or three appeals in civil cases increased the arrears of work in the appellate courts, thus making the process very slow. Another flaw was that Indians were excluded from the judiciary except at the level of the munsif. This distrust in Indians created dissatisfaction amongst them, making the system less efficient. The English servants were ignorant of the customs, usages and needs of the people and the Indians being kept out of it, made the entire system artificial. Regardless of the shortcomings of the scheme of 1793, Cornwallis successfully reorganized the judicial system. All his various measures enacted in 1793 through a set of 48 Regulations were collected and compiled in a single Code, later known as the Cornwallis Code. Through his far-reaching and progressive reforms, he introduced the principle of administration according to the law. Even the defects suffered by the adalat system were subsequently cured by adapting to the practical needs of the courts. Some of the changes made post 1793 were that Indians secured a large share in the function of administration of justice, right of appeal from lower to higher courts was curtailed and the policy of distributing justice free of cost was negated.   Thus, the reforms 1793 formed the basis of subsequent changes in the policy of judicial administration and to some extent, the foundation of the present legal system. DEFECTS In spite of being a just and benevolent administrator, he had a very low opinion about the Indian character, ability and integrity. According to him, every native of this country was corrupt. Therefore he reserved all the higher services for the Europeans and reduced the status of the Indians. On a whole, under the administrative system of Lord Cornwallis the Indians have been excluded from every honor, dignity or office, which the lowest Europeans could be prevailed upon to accept. Cornwallis was very much prejudiced against the Indians. According to imminent historians, Cornwallis approved the official seal on the policy of racialism in India. He institutionalized racism in the legal system. Cornwallis, in a manner not uncommon at the time, believed that well-bred gentlemen of European extraction were superior to others, including those that were the product of mixed relationships in India. Thus, the judicial set ups proposed by him was good, it was detrimental to the people of the country. CONCLUSION Lord Cornwallis succeeded Warren Hastings in India. Although not as successful as him, he was successful in evoking his duty. His achievements were so impressive that although with imperfections, they have been termed perfect. The judicial organization set by him gave way to various positive changes in India. He was responsible for introducing British principles and policies and planting British institutions in India through his various reforms. From the above discussion, it is evident that Cornwallis introduced reforms in the existing judicial system in three installments, firstly in 1787, secondly in 1790 and thirdly in 1793. It is certain that the forty eight regulations passed on may 1, 1793, compiled into a single code, were the real foundation on which was created a ‘Super Structure’ of the sub-continental judicial and administrative systems. Lord Cornwallis, a wise man, has established the sovereignty of law which is the basis of the civilized nation. In this way judicial reforms of Lord Cornwallis were successful to maintain and minimize conflicts in the Indian sub-continent. Reference 1. Jain, M.P., Outlines of Indian Legal History [Delhi, 1997]. 2. Singh, M.P., Outlines of Indian Legal and Constitutional History, [New Delhi, 1969]. 3. Ahamuduzzaman, Outlines of legal History of Bangladesh, Shams Publications Dhaka, 2nd Edition, 7th Reprint 2010. 4. http://en.wikipedia.org/wiki/Cornwallis_in_India#Judicial_reforms.