Introduction:
The rudimentary principle which any legal system could have achieved at any given point in history is the tenet of rule of law, but this phenomenon was absent in the medieval administration of justice in India since they embraced discretion in such a manner that discretionary punishments termed as Tazir, which provided discretion to devise new forms of retribution to the Courts, besides it a more acute form Qisas or the blood money was also embraced generally by the so-called “Court system” and whose parallels today are only found in the practice of Terrorist organizations.[1] Thus, with this premise, we elucidate the administration of justice under British India from its oriental despotism.
Early EIC Phase
The Victorian rule in administrative terms was an era of laissez faire where the government focused to act on providing a general framework for operation in the system.[2] The framework for adjudication of the dispute in British India was initially introduced when East India Company (“EIC”) was given the power to “chastise” and “correct”[3] all English subjects in India for both civil and criminal matters, and this was perhaps one of the earliest delegations of law making power. Later, in 1726 a mayor’s court was established in Bombay, Calcutta, and Madras with a mayor and six aldermen who could hear and try all civil disputes, even after 1753 the mayor’s court did not govern the natives unless with the express consent of the parties. also, this slow and gradual infusion of English lex loci on native actions was one of the aspects of codification of law in India.[4]
An attempt towards a uniform judicial system became feasible with every refinement brought about in the system, an important one being (being an aftermath of the battle of Plassey). Under Section 13 of the Regulating Act[5], the Supreme Court of Judicature at Calcutta was established as a court of record similar to that of the King’s Bench, where it constituted of a chief justice and three puisne judges. It exercised jurisdiction over civil, criminal, admiralty, and even ecclesiastical matters alongside with powers of Oyer and Terminer (power to try offenses and imprison) but was abolished along with Sadr Adalat at provinces by the Indian High Courts Act, 1861. The act though failed on various accounts, for instance, it failed to define the SC’s relationship with that of the Company’s Courts, however, still, it was an important manifestation of the doctrine of separation of power with independent judges to adjudicate.
Courts and their Procedural Operations
The structure of the subordinate courts was somewhat complex where initially circuit courts were created which acted as the court of appeals for both civil and criminal cases with European judges. However, Lord Cornwallis made some important strides by appointing native judges who worked as Munsiffs in Munsif courts and could hear matters up to Rs. 50. At the same, court fee was abolished for a brief period to make courts more accessible, thus the period between the Judicature Acts, of 1787, 1793 wanted to enforce rule of law in India, with an ultimate aim of uniform operation of law throughout India, for this even uniform guideline for enacting new regulations were provided to ensure their application is clear. As we see that Sadr Diwani and Sadr Nizamat Adalat were extended to Allahabad, and the language used in lower courts were either Persian or other vernacular languages, while the SC proceeded in English. However, the operation of SC only allowed the right of audience to Indian practitioners and was limited to English, Irish and Scottish professionals, and until the Legal Practitioners Act, 1846 the profession remained closed to Indians.[6]
Given the question of Jurisdiction, initially with Warren Hasting’s scheme of Judicial administration and later the Crown’s establishments are required to be understood. The Fajudari adalat and the Diwani adalat were established, by the Judicial Plan of 1773. Where Fajudari Adalat handled criminal proceedings, while the Diwani Adalat handled civil ones. In addition, the Sadar Dewani Adalat, a court of appeal in civil matters which had a pecuniary jurisdiction of a dispute for more than Rs. 500, and the Sadar Nizamat Adalat, a court of appeal in criminal cases, were formed in Calcutta, such that these Sadar courts functioned as provincial courts, while the Diwani Adalat acted as the district courts, but this system was in force up to 1793, this was done with the goal of separating the judicial administration from the revenue administration because the two were inextricably linked because the same officers were frequently assigned both the duties of revue collection and adjudication, but this goal was not met, and thus another attempt was made to eliminate the deficiency.[7]
The lack of uniformity in the system was seen in the functioning of the subordinate courts as different sorts of courts were functioning to resolve the case issues of the natives in all three settlements. So, the Choultry courts existed in Madras to adjudicate matters up to the value of 20 pagodas. In other words, Choultry courts heard mostly minor matters and existed until the year 1800. while indigenous in Calcutta were subject to the Zamindars’ courts.[8]
When the three High Courts of Patana, Lahore, and Rangoon were formed. The High Courts, Act allowed the government to create additional High Courts and increase the number of justices from fifteen to twenty. For many reasons, the British administration was initially hesitant to modify the Indian legal system in order to preserve local laws and customs, and appeals could directly lie to the Privy Council, except in criminal cases, the appeals from the High Courts went to the Privy Council. Furthermore, there was a provision for Special Leave to Appeal in specific circumstances, which had to be certified by the High Courts. However, prior to the Indian High Courts, Act. The two requirements to register an appeal were. –
- Value of 1000 pagodas.
- Appeal within 6 months of the date of the decision.
Though Privy Council’s role was pertinent in the development of the Indian legal framework, eventually with the establishment of Federal Court in 1935, the appeals with regard to the dispute between center and units were no more with PC but for some time appeals on individual matters did go to the Council.[9]
Justice, Equity and Good Conscience
The employment of “Justice, equity and good conscience” was seen in the functioning of the crown courts that operated in India (Supreme Courts, later the High Courts), but later this principle was diluted with a specialized codification of laws. The Indian legal system both during British rule and indigenous rule has carried this principle with itself and is one of the sources of inherent powers of Supreme Court of India under Article 142[10], and the gift of British Parliament under Code of civil procedure, 1908, section 151[11] which saves the inherent powers of the Court. While the term “justice, equity, and good conscience,” according to Lord Hobhouse, meant to implement the norms of English law if they are deemed to be suited to Indian culture and circumstances, thus as an important characteristic of law of equity, was retained in India, though it was statutorily within the British regime only under Section 6, of the Central Provinces Law Act, 1875.[12]
Codification Process
Shortly, after the power was snatched (from EIC) and bestowed directly to British Indian administration the process of codification of laws started, law commission was established by the Charter Act, 1833 and it was presided by Lord Macaulay, and which lead to a plethora of legislations including those of the IPC, Evidence Act, The Indian Contracts Act, which meant that now the general framework of contracts would be applicable on Hindus and Muslims, though short lived autonomy was there in terms of other aspects of personal law. However, morality slowly crept into the personal laws when the state decided to act as the regulator, rather than a profit generating corporation. The prescribed code of conduct by Manusmriti laid down the conduct for women which included a prohibition on widow remarriage, practice of Sati, and child marriage, which amounted to a denial of a dignified life to women. Against which social legislation was enacted, they employed various rules in the form of Abolition of sati, 1829 by Lord Bentick (under Regulation XVII), The Age of Consent Act, 1891, The Hindu Widows’ Remarriage Act, 1856, Sharda Act, 1929.[13]
Power of High Courts and Further Developments
After the initial phase of the codification process, the hierarchy of subordinate courts was solidified by the CPC, 1908, the last major development in the British Indian Administration of Justice came with the Government of India Act, 1935. Also, the power of the High Courts was prerogative in its nature, as they could issue prerogative writs in the form of certiorari and habeas corpus, however, the power to issue a writ of habeas corpus was curtailed with the enactment, Section 491 of the CrPC, 1898[14], and the power was restored only upon passing of GOI Act, 1935. And later, in Independent India, this power made the Supreme Court of India “the guardian angel of fundamental rights.”[15]
With the aforesaid Act, the Federal Court was established at New Delhi and the Supreme Court of Judicature at Calcutta was abolished, the court was granted with restricted sphere, with original jurisdiction being confined to disputes between dominions and units or between different units, while the right of the private individuals to sue the dominion was not yet recognized. While the appellate jurisdiction required a substantial question of law, for the machinery of the Court to take a start. One more important feature of the GOI Act, 1935 was that section 212 of the Act provided that law declared by the federal court and any judgment of the Privy Council shall, so far as applicable, be recognized as binding on and shall be followed by all courts in British India.[16] This clause was the incorporation of the doctrine of stare decisis which we find in the form of Article 141 of the Indian Constitution[17] which is sometimes known as the facilitator of judicial overreach.
Role of District Magistrate
Apart from the law courts, the administrative apparatus under British rule consisted of the district collector, which was introduced by the Judicial Plan of 1772, being later designated as “general controlling authority of all departments, but master of none, in a district.” The DM traditionally presided over the revenue courts and adjudicated disputes accordingly, this function of the DM is a substantial saving from the powers of the civil courts and continues even today, where Section 259 of the Rajasthan Land Revenue Act, 1956[18] specifically prohibits the jurisdiction of civil courts in the matters of land revenue and the dispute is initiated in Tehsildar Court. Additionally, the post of DM carries with itself various Magisterial functions who have the general duty to maintain law & order, especially following the separation of the judiciary and the executive, the Collector is responsible for the preventative provisions under the CrPC. As District Magistrate, he is in charge of the district’s police administration. In this role, the Superintendent of Police, who is the district’s top cop, assists the Collector in carrying out his police duties.[19]
Conclusion
Though justifying British rule by analyzing a single facet of public life would be similar to disrespecting the freedom struggle, but we have to realize that the organizational framework of the Judicial system in British India thrives even today, though some fundamentally important changes are being implemented like what we refer today as “Tribunalization of Justice.” At the same time, the implicit idea of rule of law is imbibed within the operation of administration and judicial determination in India and is designated as part of the basic structure of the Indian Constitution.[20] However, its genesis and eventual evolution were from the idea of rule by law, such that even though the idea of rule of law was absent during the British administration, as CJI Ramana described the use of law as a tool of political repression with inequalities behind it by the Colonial British Rule with inherent discrimination between Indian and English subjects.[21]
It was only in the aftermath of this wretched rule by the British that the Indian state adopted the role of facilitator, regulator, where government acted as an enabler and, thus an intensive welfare state which meant that Administration of Justice was such that administration and justice, fairness, and reasonableness as principles went together.
References:
[1] Damini Nagar, The East India Company: Legal and Judicial System and its Reforms 3 Penacclaims 2 (2018). Available at http://www.penacclaims.com/wp-content/uploads/2018/08/Damini-Nagar.pdf.
[2] I.P. Massey, Administrative Law 22 (9th ed., 2017).
[3] William H. Morley, The administration of justice in British India : its past history and present state : comprising an account of the laws peculiar to India 5 (1st ed., 2018).
[4] Id. at p. 9.
[5] The Regulating Act of 1773, §13.
[6] E. Kolsky, A Note on the Study of Indian Legal History, 705 Law and History Review 23(3) (2005).
[7] M.P. Jain, Outlines of Indian legal & Constitutional history 147 (6th ed., 2006).
[8] M.P. Jain, STUDIES IN JUDICIAL HISTORY OF BRITISH INDIA. First Edition by B.S. Chowdhury , 527 Journal of the Indian Law Institute 15(3) (1973). http://www.jstor.org/stable/43950226.
[9] M.P. Jain, STUDIES IN JUDICIAL HISTORY OF BRITISH INDIA. First Edition by B.S. Chowdhury , 527 Journal of the Indian Law Institute 15(3) (1973). http://www.jstor.org/stable/43950226.
[10] The Constitution of India, 1950, Art. 142.
[11] The Code of Civil Procedure, 1908. §151.
[12] The Central Provinces Law Act, 1875. §6. See also, supra note 3, at p. 44.
[13] M.P. Jain, Outlines of Indian legal & Constitutional history 147 (6th ed., 2006).
[14] The Code of Criminal Procedure, 1898. §491.
[15] V.C. Mohan v. Union of India, (2002) 3 SCC 451, at p. 453, ¶ 2.
[16] BS Chauhan, Law of Precedent, (Sept. 12, 2018) (unpublished article, National Judicial Academy) (on file with author).
[17] The Constitution of India, 1950. Art. 141.
[18] The Rajasthan Land Revenue Act, 1958. §259.
[19] V. Srinivas, Book review, The National Centre for Good Governance(2021) (reviewing Dr. C.K. Mathew, The Historical Evolution of the District Collector – From Early Days to 1947 (2020)).
[20] Judicial Accountability v. Union of India, (1991) 4 SCC 699.
[21] NV Ramana, Rule of law vs rule by law, The Indian Express (July 02, 2021). https://indianexpress.com/article/opinion/columns/n-v-ramana-pd-desai-memorial-lecture-indian-judiciary-state-rule-of-law-constitution-7385031/.
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