Central University of Kashmir

Nowgam, Srinagar, J&K- 190015

www.cukashmir.ac.in

Paper II- IL-105

INDIAN LEGAL HISTORY

Unit I

Objectives: This course aims to educate a student about the various aspects of legal
history, development of law and judicial evolution in India.

Unit–I:Administration of Justice in Bombay, Madras and Calcutta.

1.1 Emergence of East India Company under various Charters.
1.2 Administration of justice in Madras
1.3 Administration of justice in Bombay
1.4 Administration of justice in Calcutta
2 Working, Constitution and importance of Mayors Court
3 Charter of 1753
4 Defects in judicial system
Course Title: INDIAN LEGAL HISTORY
Course Code: IL-105
Department: School of Legal Studies
Year: 2016

Contributor’s Name: Dr. Rehana shawl

Email: [email protected]
Contact: 9419428269
Designation: Assistant Professor

CENTRAL UNIVERSITY OF KASHMIR INDIAN LEGAL HISTORY

Unit I

Introduction.

1.1Emergence of East India Company under various Charters

Charter Act of 1600-Legislative power, kings commission

The emergence of British empire in India stands out as a unique event in the history of the
world. The East India Company, with its official title as ‘’the Governor and Company of
Merchants of London trading into east Indies’’, was incorporated in England on the 31 st
Dec,1600, by a Charter of Queen Elizebth which settled its constitution, powers and
privileges. The company was to have a life span of 15 years, but the charter could be
revoked earlier by the crown on two years notice if the trade carried by it did not appear to
be profitable to the realm. No British subject was permitted to carry on any trade within the
geographical limits of India, Asia, Africa and America without a licence from the company.
Unauthorised British traders were liable to forfeiture of their merchandise and ships, to
imprisonment during the crowns pleasure and to such other punishment as might appear to
the crown to be meet and convenient.’’ The affairs of the company were to be conducted on
democratic lines. All its members were to form general Court. Which was to elect annually
by the court of directors consisting of Governor and 24 directors. The Governor and
directors were to hold office for one year though they were eligible for re –election.

The general court could remove any of them before the expiry of his term if he
did not demean himself well in his said office and elect a new to fill the vacancy
for the remainder of the year.
Legislative power:-The charter authorised the company, in its general court, to
make, ordain ,regulate and constitute laws, orders and constitutions for the
good Govt. of itself, its servants and for the better advancement and
continuance of its trade and traffic. The legislative power thus conferred on the
company was very limited and restricted in scope and character. The
punishments imposed for infringement of laws could only be fines, forfeitures
and imprisonment: no harsher punishment ,such as capital sentence could be
imposed and thus serious crimes, like murder, could not be adequately dealt
with by the company laws. On the whole the legislative power was designed to
permit only minor legislation by the company so as to enable it to regulate its
own business and maintain discipline amongst its servants.

KINGS COMMISSION:-The company soon found that its legislative power was
inadequate in practice for maintaining discipline amongst its servants while on
long voyages. It could not adequately punish serious offences committed by
the servants as it could only impose imprisonment and no harsher sentence
and this proved to be inadequate deterrent to prevent lawlessness and
disorderliness among the servants while on high seas. To meet this situation,
the company invoked crowns prerogative and used to secure from it a
commission to the commander –in-chief of each voyage, empowering him to
inflict punishment for capital offences such as murder or mutiny and to put
into execution the law called ‘’the law martial’.’ The first of such commission
was issued by Queen Elizabeth on 24 th Jan, 1601 to captain Lancaster for the
first voyage. Under one such commission, trial was held on 28 th Feb,1616 on
board the ship Charles lying at the surat port, before the chief commander of
the fleet. George lellington had killed an Englishman near surat. George was
convicted on his own confession and condemned to death. This is the earliest
available account of trial held on the shores of India during company regime.
king james I on Dec,14 1615 issued such a commission to its captains subject to
the provision that in case of capital offences such as will full murder and
mutiny, the verdict must be found by a jury of twelve company servants.

CHARTER OF 1661-SURAT FACTORY.

The Charter act of 1661 conferred broad powers on the company to administer justice in its
settlement has an important bearing on the evolution of judicial system of India. On
April,3,1661,Charles II granted a new Charter to the company authorising the Governor and
council of each factory to judge all persons, whether belonging to company or living under
them, in all causes civil or criminal, according to the law of England and to execute
judgement accordingly.

As compared to the Charter of 1600, the Charter of 1661 granted a much more
extensive judicial power to the Governor and council of a factory. While the power under
the former Charter was restricted in respect of persons, it being applicable only to the
servants of company in respect of punishments as capital sentence could not be awarded
under it while Charter of 1661 authorised all punishments including death sentence. Two
features of the charter of 1661 may be underlined.

First, the judicial power was granted to the Governor and council of a factory. The Charter
thus drew no line of demarcation between the executive and judiciary.

Secondly, justice was required to be administered according to English law. This was a
safeguard and a privilege for the English men and the right of Englishman governed by
English was protected.

SURAT FACTORY:-

The British people regarded Surat as the most suitable place for establishing a factory. Surat
at that time was an important commercial centre and a populous town within the Mughal
empire. Above all it was an international port as from there thousands of pilgrims sailed
every year to holy places in Arabia and this was the most attractive feature to the British for
whom sea was the only means of communication with England. In their way however came
the Portuguese who having already established at Surat did not relish any competition in
their Indian trade. Consequently in 1612, the Englishmen succeeded in establishing their
factory at Surat with the permission of Mughal Governor.

After sometime the Englishmen felt that to lend permanency to their Surat
establishment they should secure necessary trading facilities to the Englishmen viz, they
were allowed to trade and establish a factory at Surat in a hired house, they were allowed to
live according to their own religion and laws without interference. Till 1687, Surat was the
chief centre of companies activities in India. It was the most important factory and first
presidency as its administrative head was designated as the president or Governor. Other
factories as and when established in India were subordinate to Surat . Being the first major
English settlement in India .The administrative and judicial arrangements made at Surat
factory are of some historical interest. The factory had a rudimentary administrative and
judicial set up. Its administration was vested in the president or council who were appointed
by the company. All decisions in the council meeting were taken by a majority of votes. The
president had only one vote like any other member and had no veto and no power to over-
rule his colleagues. In the area of law and justice the Englishmen at Surat were under a dual
system of law; viz, the English law and the Indian law. In civil cases, justice was administered
according to the personal laws of the hinds or the Muslims. The criminal law was entirely
Muslim. The affairs and relations among them were to be regulated according to their own
law and by their own authorities within the factory and to this extent they were to be
exempt from the authority of local courts functioning at Surat.

The main responsibility of the Englishmen at Surat was to govern themselves and not to
care for the Indians who had local courts to go to. But at the presidency towns of Madras,
Bombay and Calcutta the problem of judicial administration had a different complexion, it
was to meet the needs not only of the British people but also of the Indians who came to
reside there. No such complexity arose at Surat. No regular tribunals were created at the
factory for deciding cases amongst the Englishmen inter-se. The president and the council
wielded the judicial power. Though the English law was required to be administered yet in
practice hardly any law was administered. The condition of administration of justice in the
local courts at that time was at very low ebb and suffered from many evils and vices.
corruption and bribery were rampant in this sphere. English travellers depict the sorry state
of affairs prevailing at the time in the area of law and justice. Hamilton says: the
Mohammadan’s have the law in their hands and distribute justice best to those that pay
best for it. The judges fee is 25% on all sums that he pronounces due to the party whose
plea is best supported by bribes or interest for the justice of the cause seldom prevails.’’

Anderson mentions the following episode:’ ’on an occasion, a party of dancing girls refused
to appear before the governor of Surat, as they had been ill paid on the former occasion.
The Governor administered them to justice. They were dragged into his presence and
beheaded then and there.’’

According to Fryer, a gold smith found guilty of coining copper coins was punished for the
crime as follows: first they shaved his head and bread-----then putting a fools cap on his
head, they sat him on an ass with his face to the tail.......and one of the drums was beat
before him.....being back to the prison they cut off his hands, and let him lie there during
the crowns pleasure.

These incidents could hardly promote among the Englishmen any confidence in, or respect
for the established judiciary. They would not therefore resort to local courts and often took
the law into their own hands by-passed the local courts. It is on this unhappy note that
history of the legal system in India opens but as time passed on things improved gradually
and by stages.

1.2 Early Administration of justice in presidency towns:-

Administration of justice in Madras

Madras was the first presidency town to be established by the British. The administration of
justice in the town of Madras before 1726 evolved in three stages:-

1639---1665(foundation of Madras)

1665---1686(establishment of court of Governor)

1686---1726(creation of Admirality Court and Mayors Court)

First period(1639—1665)--- it began with the foundation of Madras in 1639 and continued up to
1665. Mr. Francis day acquired a piece of land from a hindu ruler and founded Madras in 1639. To
construct a factory named as fort St. George. This fort was inhabited by the Europeans and the
British servants of company and was known as white town. Small village grow in size and was called
as black town inhabited by Indians. Black town and white town later came jointly to be known as
madras separate provisions were made for the administration of justice in white town and black
town. Madras was given the status of agency and its administrative head was called as agent. In
white town... the agent and the council decided both civil and criminal cases. The powers of the
court were vague and indefinite hence the efficient administration of justice could not be expected.
On several times the causes were referred to London for advice from the authorities of the
company, because they were not sure about their powers and jurisdiction. In black town.—the
company under obligation to administer justice in Madras patnam could not start any judicial
tribunal during this period, and left the traditional system to continue. The old Choultry court
administered justice in the black town. The Adigar the village headman, sat in the Choultry court and
decided petty civil cases and small breaches of peace. In serious cases reference was made to raja of
the place

Second period---(1666-1686)—Charter of 1661 conferred extensive judicial power on the governor

and council of a settlement. Status of agent to governor was raised. This was necessary as by the
charter of 1661 judicial power was vested in the Governor and not agent. Law was made applicable
to Indian settlement by the charter of 1661.The council in 1678 resolved that court of governor and
council should sit more regularly and would administer justice in all cases civil and criminal according
to laws of England. Governor and council were designated as high court sit on two days a week and
decided cases with the help of a jury of 12 English men. Choultry court was re-organised consisted of
companys servants, sit twice a week and decided petty offences, matters of peace and civil cases up
to 50 pagoda .from the decisions of this court an appeal could be filed in the high court i.e, the
Governor and the councils court during this period hierarchy of courts came into existence in madras
i.e, superior court and lower court their jurisdictions were outlined the lower court Choultry court
could decide small cases and all other cases and appeals from the lower court were to be heard by
the upper court with the help of jury.

Third period—(1686-1726)—Admiralty court was established, authorised to hear and determine all
cases and thus court of governor and council ceased to exercise judicial function. Admiralty court
functioned up to 1704 and jurisdiction was taken by Governor and council of Mayors court. Charter
of 1687 created another court known as Mayors court at Madras, consisted of Mayor and 12
aldermen .Mayor was always English man. Mayor and two Alderman sat 2 days a week ,decided
criminal cases on the bases of laws enacted by the company. Mayors court also consisted of an
officer known as recorder who had knowledge of law at the end of 1704 3 courts were there---
Choultry court, mayors court and the court of Governor and council. In 1727 the Mayors court at
madras was established this court was different from the existing Mayors court of 1687 which was
companys court. While the court of 1726 was a kings court established under royal charter.

1.3 Administration of justice in Bombay---

The administration of justice in Bombay from 1668 to 1726 is divided into three periods:-

Ist -------------1668----1683

Second----------1684----1690

Third-----------1718-----1728

King of Gujrat sultan Bahadur--1534------Portuguese King Alfonsis VI---dowry--------Charles II---—rent

of 10 pounds----------East India Company

Charles II transferred island of Bombay to East India company through Charter of 1668 as he got it as
a dowry from the Portuguese king in 1661 when he married princess Katherine the sister of king.
Charles transferred this island to the East India Company in 1668 at the annual rent of 10 pounds.
The charter of 1668 empowered the company to make ordain, law, constitutions for the good govt.
of the island and to establish court of judicature similar to those established

First period---(1668-1683)—first judicial system was established in 1670. Bombay was divided into 2
divisions and a court was established in each division, consisted of 4 or 5 judges empowered to
hear ,try and judge small cases both civil and criminal. Some judges were Indians and quoram was 3
judges. Superior court of deputy governor and council exercised both original and appellate
jurisdiction and decided cases with the help of jury.

Defects of 1670 system-judges of lower and upper courts had no knowledge of law or did not know
even the elementary principles of law. Executive and judicial power were not separate. To check this
new judicial plan was established in 1672. Cases were now decided on the bases of english law and
not on the bases of Portuguese law. Central court at Bombay was established having single
judge ,sat once a week and decided all civil cases for criminal cases Bombay was divided into 4
divisions each headed by Englishmen called justice of peace. He acted as community magistrate and
after recording the necessary proceedings he sent the accused to the central court for trial. Appeals
from this court would lie to the superior court of deputy governor and council. Scheme also provided
for the establishment of court of conscience, sat once a week, decided petty civil cases no fee was
charged from litigants.
Second period—(1684-1690) admiralty court was established as was established in madras not
decided only admiralty i.e, Navy cases which happened on long voyages but also civic and criminal
cases. This court was presided over by a lawyer ,Dr. John, who was well versed in the civil law. This
system continued till 1690. In 1690 Bombay was attacked by Siddi, the admiral of the Mughal
emperor who captured it as such the existing system was broken from 1690 to 1718, the history of
judicial evolution at Bombay was in the dark.

Third period-(1718—1727) in 1718 a new court of judicature was created which administered justice
in all civil and criminal cases. This court consisted of a chief justice and nine judges. The chief justice
and five judges were all Englishmen who were also the members of the council rest 4 judges were
Indians representing different communities. The cases were tried according to law , equity and good
conscience and the rules and ordinances issued by the company from time to time. Indian customs
and usages were also considered in determining the cases the court also acted as a registration
house for the registry of sales of houses, lands and tenements. It had also testamentary jurisdiction.
The quorum of court was 3 english judges. Indian judges were called ‘’black justice’’. The court met
once a week and gave quick and cheap justice. The governor and council were to hear appeals from
this court. The court functioned till 1728,when it was replaced by better court, known as mayors
court under the royal charter of 1726.

1.4 Administration of justice at Calcutta----(1690—1727)—

On 24th august,1690the foundation of the city of Calcutta was laid by the Britishers who first landed
on Satunti ,situated on the banks of river Hoogly to establish a factory fort. William. In 1698
company secured the Zamindari of 3 villages of Calcutta, Sutanti and Govindpur, on which the
modern Calcutta has grown up and in 1699 it was declared the presidency town as governor and
council were appointed there. Since 1698,the company exercised all those powers which the other
Zamindars in the country enjoyed and exercised both civil and criminal jurisdictions. A collector was
appointed at Calcutta. To administer justice for the Natives, courts were established on usual pattern
prevailing in the country. The collector was responsible for the collection of revenue and took
cognizance of revenue cases. In criminal cases, the collector had a Faujdari court to administer
justice. No jury was employed for disposing of the cases. The collector imposed necessary
punishments like whipping, fines, imprisonment etc. according to the gravity of offences. Help of
arbitration was also taken. Cases were decided according to the customs and usages of the country.
In their absence, the collector decided cases according to what he considered just. Appeals from the
decisions of the collector lay to the Governor and Council. This system continued up to 1727 when
Mayors Court was established under the Charter of 1726.Nawabs court ceased to function properly
and authority was taken up by the collector and appeals from this lie to court of Governor and
council and not to Nawab’s court.

2 Royal Charter of 1726 and creation of Mayors court:--

Genesis of the Charter Act of 1726

A petition was made before the king for a fresh charter by the company stated that three
presidency towns of Calcutta, Madras and Bombay had increased very much in respect of trade,
commerce and population and thus there was great need of speedy and effectual administration of
civil and criminal justice. The company therefore requested the crown to grant it such powers as
may conduce it to the punishing of vice, administration of justice and better governing of the
factories and settlement another need was to establish the testamentary and intestate jurisdiction.

Charter Act of 1726---

This charter was issued by the king George I on 24 Sept.1726 and is responsible for the judicial
evolution in the three presidency towns. This Charter introduced uniformity of approach in this
respect as in each presidency town similar judicial institutions were established. The Charter
established civil and criminal court in the presidency designated as royal courts. Advantage of this
mayors court was that their decisions were authoritative as those of courts in England as the source
of authority for both the courts was same. Charter of 1726 initiated the system of appeals from
courts in India to the king –in-council(privy council) in England and thus was established a bridge
between the English and Indian legal systems and thus English law created deep impact upon. The
Charter of 1726 also established a local legislature in each presidency towns and thus legislative
power was shifted from England to India and thus Charter has an important bearing on the
questions of the date of introduction of English law into presidency towns.

Provisions of the charter----

Corporation

Each presidency town was to have a corporation consisting of a Mayor and 9 aldermen ( two
subjects of state ,7 subjects of crown).mayor hold office for one year and was to continue as an
Alderman there after. Mayor was to be elected from aldermen by Alderman and outgoing mayor.
Alderman hold office for life. Vacancy amongst the aldermen was to be filled by mayor amongst the
Alderman of the town and not by the governor and the council. Governor and council could remove
Alderman on reasonable cause and dismissed alderman could appeal to the king-in-council against
the dismissal and thus the object was that corporation should be an autonomous body free from the
control of executive.

JUDICIAL SYSTEM:--

Mayor and 9 Alderman formed the Mayors court. Quorum of court was 3 i.e, mayor or senior
aldermen together with 2 other alderman. Authority of the court was to hear, try all civil cases
within town and subordinate factories. First appeal from court lay within 14 days to the governor
and council from where a further appeal could be lodged in all matters involving 1000 pagodas or
more. Thus this was the first time i.e, a right of appeal to the king-in –Council from the decisions of
the courts in India was granted.

ADMINISTRATION OF CIVIL JUSTICE----

The Mayor and all the nine Aldermen, at each of the presidency towns were to form a court of
records by the name of the Mayors court. The quorum of the court was to be three. The court heard
all civil suits. Appeals from this court lay within 14 days to governor and council. A further right of
appeal in all cases involving 1000 pagodas or more lay to the king –in-council within a period of 14
days. In this way there could be no appeal after the decision of Mayors court where the valuation of
the case was less than 1000 pagodas. The Mayors court being a court of record could commit
persons who were guilty of its contempt. The mayors court was vested with testamentary
jurisdiction. The court was authorised to grant probates of wills left behind by the deceased
Englishmen. The law applicable to the court was English law as per the charter Act of 1661.

ADMINISTRATION OF CRIMINAL JUSTICE---

The mayors court was not to have any jurisdiction in criminal trials, and was only a court of civil and
testamentary jurisdiction. They administered English criminal law and procedure. The criminal
jurisdiction was conferred on the governor and the five senior members of the council at each
presidency town in the first place, each one of them was appointed as justice of peace and could
arrest persons accused of committing crime and could punish those who were guilty of petty
offences. Secondly, the Governor and the five senior members of the council were to form a court of
record. Three of them were to hold quarter sessions of peace 4 times a year. They tried and
punished every criminal offence and enjoyed the powers of Oyer and Terminar and Goal delivery.
The procedure adopted by these courts were similar to those of courts at England. The charter Act of
1726 made provisions for the employment of the grand jury and the petty jury by the court of
quarter sessions for criminal offences. It consisted of 23 persons. The function of grand jury was to
bring the suspected person before justice of peace for preliminary inquiry. The petty jury would be
empowered to hear both sides and try the issues of fact..it is clear that the judiciary was not still
free from the executive as the Aldermen were company’s servants or English traders who depended
upon the company’s permission to stay in India. However the development was a step to separate
judiciary and executive and this objective was partially achieved by the charter.

LEGISLATIVE POWERS---

The governor and the council of each presidency were empowered to make bye-laws, rules and
ordinances for the good government and regulation of the corporation and the inhabitants of the
respective towns. In this way for the first time subordinate legislature was created in India. Before
the Charter Act of 1726 legislative power was exercised by the General Court of the company..

CHARTER ACT OF 1753----

In 1746 French occupied Madras. In 1749 surrendered it to British. Madras corporation established
under the charter of 1726 ceased to function. Hence fresh charter was necessary. New Charter of
1753 for Madras, Bombay and Calcutta was granted by king George ii which introduced certain
modifications in the jurisdiction exercised by the mayors court. It was provided that the mayors
court were not to try civil actions between natives but to be decided among themselves unless both
parties consented for the same thus it was the first reservation of their own laws and customs to
Indians

OATH SYSTEM

Change in the oath system was to be taken in such a manner as they according to their several
castes shall esteem to be most binding on their conscience, to oblige them to speak truth another
change was placing mayors court in a subordinate position to Govt. System of appointment of Mayor
and Aldermen was modified. Executive was empowered to appoint Mayor who was selected by
Govt. and council out of the panel of 2 names of aldermen and alderman was appointed by govt.
and council. Result was that mayors court lost the previous grace of independency.

COURT OF REQUESTS

This court tried petty cases of value not exceeding 5 pagodas i.e Rs 15 was established in each
presidency town. Purpose was to give quick and cheap justice to poor litigants. Consisted of
commissioners number was 8 to 24 sat in 3 groups by rotation. Court meeting was held once a week
in the beginning commissioners were appointed by governor and council as one half commissioners
retire every year vacancies were filled by rest of the commissioners.

DEFECTS OF THE CHARTER OF 1753

Servants of the company were judges of Mayors court therefore not well versed in law and acted
according to their own sense of justice. Judges could not be expected to decide impartially the
disputes arising out of the business transactions between the servants of company and the natives.

Sometimes a reference to the case was made to the court of directors in England for advice. This
caused a great deal of delay. No doubt there was provision to refer an appeal to the king-in – council
but in those days it was not possible to cover such a long distance