JUDICIAL SYSTEM BEFORE 1947

By
Y. SRINIVASA RAO,
M.A (English)., B.Ed., B.L., (LL.M),
First Additional Junior Civil Judge,
Bhimavaram.

'' We are trying to give a good government to people of India

to whom we cannot give a free government.'' -- Macauly

The British ruled India for a period of almost about 190 years. Yet, the
English set up a poor copy of the British judicial system as Indian judicial
system.
The judges , in pre-independence India, were the symbol of imperial
power. Hardly after 20 years of Ranjit Singh's death, the whole continent of
India had passed into the hands of East India Company. The motto of the
English was not to provide justice to the local people but the only motive
behind these efforts was to replace the existing judicial system to mould
the local people according to their own desire of ruling them in the long
run. The concept of jury was anathema since it would have involved the
local people in decision making process. All nations,which came to India,
tried to establish their monopoly on trade and started to take part in local
affairs. The Portuguese was the first country which came to India for
trade. Yet, the English only succeeded. Owing to luxuries and weak
military position of the Mughal government, the British won in the wars
with fulcrum of local rulers. A perusal of world history, it evinces that if
any nation conquered the other nation, they enforced their own system of
administration. Similarly, the British rulers changed the whole
administration of our country especially the law and justice. However,
Even after Indians were appointed as judges, any contact between judges
and the common people was discouraged.The Europeans came to India
through Sea route as a trading nation, and ultimately gave a new turn to
the Indian history. Their commercial instinct led them to discover the sea
route to India. They had no intention to conquer the country; their
objective was to establish commercial relations with India.
HIGHLISHTS:

-Dravidian- the local inhabitants of India had established their own

system of Judiciary.
-Then Arians adopted that system with slight modifications.
According to the traditions and customs of Hindu caste system under the
panchayat system, the cases were decided The Raja was the highest court
of appeal. There were civil and criminal courts at local level . The judges
were advised by the learned Brahamins as to the interpretation of Hindu
law. The punishments were based on caste system.
-The Arabs entered into India in 712. A.D: They introduced Qazi
system for criminal cases in the areas of their influence while retained the
old panchayat system as to civil cases.
- Delhi Sultanate: They introduced the several changes in the existing
Judicial system and made it more human. The Qazis were appointed to
deliver of justice.
- Islamic Judicial System : The Mughals introduced Islamic judicial
system. Yet , they did not introduce purely Hindu Panchayat system,
despite it was the mixture of Islamic, Persion, and local Hindu system. At
local level, the Panchayat system was limited up to the religious matters
of Hindu community.
- Having the Turkish occupied and took control of the Mediterranean Sea,
the European trade was totally at the mercy of the Muslims. Ultimately, a
new trade route was discovered to reach Asia . The English started
changing the prevailing judicial system in India in order to strengthen
their power.

- Sea route: In 1498, Vasco de Gama discovered sea route to India and
reached the port of Calicut. Thus, the Portuguese, the first Christian
nation, came to our country. Their policy is ''Divide and Rule''.
- The British, the Danes, the Dutch, and the French reached India:
After arrival of Portuguese, the British, the Danes, the Dutch, and the
French also reached India. All of these nations came to India for trade.
But, out of them, the English people succeeded to establish their power in
India. The Governor and company were authorized to make laws.
However, owing to limited legislative right, it led to establish a new
Judicial system in India.
-Arrival of the East India Company in Sub-continent: Queen
Elizabeth granted a charter as to monopoly of Eastern trade for period of
15 years in the month of December, 1600.
- Elizabeth I`s charter during the year 1600: Because of this charter,
the East India Company empowered it to make laws, constitutions, orders
and ordinances as necessary for the governance of its servants. Thus, the
East India Company empowered to impose punishments subject to
English laws and customs.

In 1609, after reaching the court of Emperor Jehangir, the English

expressed their desire intention for permission to them for settlement at
Surat.
In 1612, nevertheless the Portuguese force attacked the English at Surat,
the English defeated the Portuguese.
In 1613, a farman was sent by Emperor Jahangir permitting the English to
establish a factory at Surat.
In 1615, the England entered into a commercial treaty with Mughal
Emperor.
In 1621, the British East India Company produced the Laws, a
compilation of rules: These laws and rules were quite new to India. Thus,
the Judicial condition, in those days, was seriously strict and stringent for
Indians.
In 1624, the first judicial power that was granted to the company by the
King of Britain: On the request of the East India Company, King James 1
granted the judicial powers to punish civil and military personnel of
company in India by martial as well as municipal laws.
In 1634, A Golden Farman was granted to the British by the Sultan of
Golconda. It allowed the British to trade in the kingdom of Golconda. The
British had to pay 500 Pagodas per year.
In 1639, Inasmuch as Francis Day obtained the lease of a land from the
ruler of Chandragiri, It became a foundation of new city "Madaras". Thus,
the Fort St. George was become the first fort in India by the East India
Company.
In 1651, having grant of concession for trade by Nawab Shuja of Bengal,
the English strongly established in Bengal.
-In 1652 ,the Chaultry Court started operation in Madras: In this
Court, civil cases like cases of debt upto 50 pagodas were settled. Besides
that cases , as to breaches of peace, were settled. This Court presided by
one Indian and two Englishmen.
-In 1661, the Charter Act which was granted by Charles II (1630-1685),
made provision for the use of English criminal law in India.
- In 1666, in Madras, an early styled court consisted of the Governor-inCouncil.
-In 1668, in response to the issuance of a new Charter, Thomas Papillon
and Mr. Moses prepared a draft code of laws. Following their revision and
approval, they took effect in January 1670 in Bombay. Thomas Papillon
(1623-1703) was member of the Company`s Court of Committees. Mr.
Moses was Solicitor of the East India Company.
-On 2nd February 1670, Gerald Aungier, who was the Governor of
Bombay, initiated a scheme for the first provision of justice in Bombay.
He established two precincts of justice, each with five Englishmen.

Appeals from these bodies were sent up to the Deputy-Governor and

Council for hearing. At this appellate level all trials were held with juries.
-On 8th August 1672, Aungier established a Court of Judicature for
Bombay . George Wilcox was its first judge. During this time the use of
Portuguese laws were abolished to support British law.
-On 16th August, 1672, Wilcox, who was Judge of the Bombay Court of
Judicature, started a Court of Conscious. Because of this, even the poor
could receive free justice. It worked every Saturday.
-On 18th March 1678, under the instructions of Streynsham Master
(1640-1724), the Madras Court operated the judicial activities. The new
court tried civil and criminal cases according to English law.
-The Charter granted in the year of 1683: It authorised the
establishment of Courts of Admiralty in the three Presidency cities.
Additionally The Court held the power to apply martial law in whole
India.
-In 1685, in Bombay, the President of the Court of Judicature suggested
that civil appeals from the Admirality Court appeals should pass to the
Deputy Governor and Council.
-In 1686, the Madras Court ceased operation in favour of the Court of
Admiralty. Cases could also be accepted by the latter Court from the
Madras Mayor`s Court.
-In 1690, For a time the Deputy Governor and Council handled some
judicial matters inasmuch as no Judge remained to ensure the continuance
of the Court of Judicature due to Sidi's attac in Bombay.
-In 1692, the Government of Bombay established the office of the
Coroner.
-In 1694, in Calcutta, the Council possessed a zamindar status. therefore,
a Zamindari Court was convened to administer both civil and criminal
cases among the Indians.
-In 1698, the Company also acquired zamindari rights at Sutanati and
Govindpur.
- In 1698, the new Charter, as granted by King William III (1650-1702),
determined that the East India Company would carry out its business in
accordance with such by-laws, constitutions, orders, rules and directions
provided by its General Court as were not repugnant to the laws of
England.
- In 1700, Bengal was established as a Presidency with a Governor-inCouncil and therefore the Company granted full judicial authority.

- In 1704: The development and staffing of judicial institutions in

Bombay had been delayed until the arrival of Sir Nicholas Waite as
Governor of Bombay in November 1704.
-In 1712, the practice of one-person judicial operations practiced during
the preceding decade was ended inasmuch as the Council of Bombay
passed a resolution declaring that it would sit two days a week to hear
judicial matters..
- In 1716, the East India Company instructed to form a sub-committee
of the Governor`s Council to deal judicial matters.
-In 1717, the Governor-in- Council of Bombay announced as to
establishment of a new Court of administration . The court started
working since 25th March, 1718. Laurence Parker was the Chief Justice.
The court possessed wide civil and criminal jurisdiction. Appeal of its
decisions could be made to the Governor-in-Council. Justice was
delivered from the bench.
-In 1726, the Crown granted Letters Patent which provided for the reestablishment of a Mayor`s Courts, which practiced English common and
statue law, in Madras, Calcutta, and Bombay. They were composed of the
Mayor and nine Aldermen, seven of whom were required to be British
subjects. They possessed jurisdiction in civil cases with appeal to the
Governor-in-Council and later to the Privy Council in case of the value
exceeded 4000 rupees.

-In 1753, Because of the measures of the 1726 Charter Act, the new
Charter Act modified the jurisdiction of the Mayor`s Court in Bombay,
Madras and Bengal. This Act vividly explained that with the consent of
both parties , the cases between two Indians could only appear before the
Mayor`s Court. This Act provided for a Court of Record, consisting of the
President and Council to hear appeals from the Mayor`s Court.
-In 1754, As the Royal troops arrived to India, the terms of the Mutiny
Act and the Articles of War made applicable to Company`s military
forces.

-The result of Plassy,in 1757, paved the way for the British conquest of
Bengal and eventually of the whole of India.

-In 1765, in Bengal, Nawab granted dewany to the East India Company
that led the responsibility for working Dewany Courts not only in Bengal
but also in Orissa and Bihar.
- In 1769, in recognition of some oppression and judicial chaos in the
interior, or `Mofussil` (places and areas that did not fall under city
categories, remote districts), the Company appointed some Covenanted
Servants to act as Supervisors of the Country Courts.

-On 28th April 1772, as ordered by the Company`s Court of Directors,

Warren Hastings (1732-1818), who was Governor of Bengal, directed the
Patna and Murshidabad councils to introduce not only judicial
administration but also revenue administration during this period, the
Mohamed Reza Khan and Shitab Roy were arrested as ordered by
Warren Hasttings. Mohamed Reza Khan and Shitab Roy were former
administrators of Judicial and revenue functions in India. Warren
Hastings became the first governor-general of Bengal.
-On 15th August 1772: Role of Warren Hastings: 1) The first British
Indian law code, in Bengal, Bihar and Orissa, was introduced during
Hastings period. 2) Two courts viz the Fajudari adalat and the Dewani
adalat were introduced. The Fajudari adalat dealt with criminal cases and
the Dewani adalat dealt with Civil cases. 3) Besides that the Sadar
Dewani adalat, as court of appeal in civil cases, and the Sadar Nizamat
adalat as criminal cases appeallate court , were established in Calcutta.
4) This system was in force upto 1793.
-''Vivadarnava Setu'' (Code of Law): Hindu scholars, of Hindu
Commission, prepared a code of Law and it was called as ''Vivadarnava
Setu''. This code of Law was prepared in Sanskrit during the period of
1773-1776.

- "Regulating Act" in 1773 : Based on the recommendations of a select

and a secret committees, ''The Regulating Act'' was passed by the
parliament passed in 1773 which introduced parliamentary supervision
over the Company in India and also modified its constitution both in
England and in India.
-In 1780, the judicial powers of the six (6) provincial Councils were
transferred to six (6) Dewany adalats. These Adalats were presided over
by servants of the English Company.
-In 1781 the number of these courts was increased to 18 (eighteen) and
they tried all kind of civil cases. The duties of Faujdars were transferred
to the District Judges. The criminals were tried in the Faujdari adalat
under Indian judges, yet, the ultimate control of vested with headquarter.
- In 1784, The British parliament passed an Act defining more clearly the
jurisdiction of the Supreme Court, exempting from it the official acts, the
Governor General and Council, the Zamindars or farmers, and all matters
concerning revenue collection.
-- (1790): The East India Company made it clear that taking control of
Criminal justice system in all parts of India (except Bombay) under the
Company control. Dewany (money) management of was offered to the
Compnay by the the Mughal ruler. Zamindars, who coleected revenue,
used judicial power and thus the Zamindars came under the control of the
British.
Judicial
reforms
under Judicial reforms under Governor
Governor General Cornwallis: General Lord Bentick:

During
the
period
of
Cornwallis
administration,
significant changes were made
in
all
branches
of
administration, including the
judicial system.

i) Lord Bentick took the charge as

Governor General in 1828.

In 1787, the District Courts

were again placed under the
collectors.

iii) He appointed Indian judges in the

lower courts, gave them wide
powers, and better pays.

The English collectors vested

with the powers of a magistrate
could try criminal cases within
certain limits.

The more important criminal

cases were tried before District
Criminal Courts and Sadar
Nizamat Adalat was the court
of appeal. "His (Governor
General) Governing idea in the
administration of India was to
have India, not for Indians but
for England."

iv) Tylor wrote, "The first reform was

applied by the regulation of 1831
to the judicial department in the
creation of native judges, and their
primary jurisdiction over civil
suits.

ii) And declared that high office was

open to all irrespective of race and
creed.

v) This measure not only relieved the

judicial department of a load of
work which could never be
completed but opened a way to
official service which during the
last fort}' years, has been
materially
enlarged
in
all
departments
of
the
administration."
vi) Lord Bentick abolished the
provincial courts of appeal and
circuit, which served no useful
purpose. It was rather the source
of delay in prompt decisions.

Preparation of draft of the Indian penal code by Macauly: The

charter of 1833 provided base for their consolidation of reforms and
codification of laws, and accordingly a law commission was appointed
in the year 1834. Macauly prepared a draft of the Indian penal code
but little was done after his departure, and the commission was finally
abolished. Before the return of Macaulay to India, two parties had
been formed, called the orientalists and the Liberals. Macauly also
took part in the controversy. He presided over the deliberations of two
parties and the casting vote of Macauly as President defeated the
contradictory.
" The beginning of modern Indian public law appeared in 1833 with
the creation of the Indian law commission which in due time (1861)
produced the Indian penal code and later the codes of criminal and
civil procedure."
Under the Charter of 1853, a new commission was appointment for
the planning to create High Courts in India on the lines of British
judicial system and for the compilation of uniform code of law
applicable to the whole judicial system irrespective of religion and
creed.
"The Indian 'Mutiny' of 1857 hardened the imperial resolve to take
India at any cost." The Act of 1858, which embodied these changes,
made provision for a council of India and Secretary of State for India.

The most powerful trading company of British died its natural death
and India came under British parliamentary control.
The government of India under the parliamentary control of British
introduced the stamp duty on the judicial cases.
The establishment of High Courts in Calcutta, Bombay and
Madras: Under the recommendations of commission appointed in
1853, The Government introduced important reforms in the judicial
system. Their recommendations were accepted and in 1861 the Indian
High Courts act authorized the establishment of High Courts in each of
the following towns; Calcutta, Bombay and Madras in place of old
Supreme Court, Sadar Fojudari Adalat and the Sadar Dewani adalat
were abolished after having a age of 90 years.

Inasmuch as the penal code and first criminal procedure code came
into force, the Islamic system of justice disappeared in 1862 .

The Crown was empowered to appoint the Chief Justice and Judges
for these High Courts. The appeal against the decisions of high courts
was presented before the judicial committee of the Privy Council. The
Privy Council was situated in London.

"In 1866 a regulation, which was amended in later years, established a

Chief Court for the Punjab much on the same lines as the High Courts,
though the judges were to be appointed by the Governor General in
Council and not as in the case of the High Courts by the Crown."
In 1872 a Court headed by Judicial Commissioner was established in
Burma and various improvements were made in 1875. After the extension
of British territory in Burma further amendments became necessary and
Act VI of 1900 established a Chief Court in Burma.
The Indian National Congress (1885): The congress drew the attention
of the government for separation of judicial and executive functions in the
administration of criminal justice.
In 1911, under the Indian High Courts Act, three High Courts were
established at Patana, Lahore and Rangoon. This act enabled the
government to establish new High Courts and raise the strength of judges
from fifteen to twenty. Due to certain reasons the British government had
been reluctant to change the Indian legal system in the beginning as far as
to respect the local laws and customs.
The British government made no change in the composition of High
Court judge's till the independence in the provisions of the act 1861.
The Government of India Act, 1935:
i) Under the Government of India Act, 1935, the government
abolished the old proportional arrangements of judges of high
courts.
ii) Thus, the old rule of appointing the Chief Justices exclusively
from among barristers or advocates was modified to the extent that
they now might be appointed either from among the pleaders of
High Courts or from among the officers of the Indian Civil Service.

An important change in the judicial system was proposed to stable

the federation. Sections 200 and 203 of the Government of India
Act, 1935 provided for the creation of Federal Court, which was

normally to be located at Dehli and was to consist of a Chief Justice

and not more than six puisne judges.

The qualification of judges: it would be at least five years

experience as judge of high court or at least ten years experience
for barrister and advocates of Scotland or at least ten years of
experience for pleader of high court of a province.

The eligibility of the chief justice would be at least fifteen years

experience as pleader, barrister or advocate.

- The Federal Court:

1. On 1st October, 1937, the Federal Court was constituted. The chief

justice and Judges of Federal Court were to be appointed by the

Crown and were to hold office till the age of 65 (sixty-five).
2. Sir Maurice Gwyer played important role in drafting of 1935

Act for India., and hence he became the first chief justice of the
federal court of India.
3. The Privy Council interprets of the constitution.
4.

The final appellate authority of Privy Council was kept intact

while it should vest in the Federal Court, as it is required in the
federation.

5.

Macauly's words
reflect the thinking of the British
Government for future of India. ''We are trying to give a good
government to people of India to whom we cannot give a free
government''.

6. The federal court declared the 'defence of India rules' as ultra vires,
proving its independent and impartial authority, indeed was a
turning point for the judicial development in India.
CONCLUSION:
To say succinctly, without explaining the long story of struggle for
independence, here it is copious to say that the period from 1940 to 1947
was critical for both Congress and Muslim League inasmuch as both the
parties took a very aberrant stance on the issue of independence, which
finally culminated in the formation of two independent states in the
Subcontinent,viz, India and Pakistan. With the creation of these two states
the British rule in India formally came to a climax. It is now needless to
say that the status of Indian Judiciary is being increased after
independence.
--x--