Privy Council: its Appellate Jurisdiction and Constitution

In 1833 an Act was passed by the British Parliament determining the constitution of the Privy Council as a Court of Appeal. The right to appeal to the king in Council was first granted in connection with the judgements of the Mayor's courts established by the Crown's Charter in 1726.The right was also reserved in reference to the Supreme Court at Fort William and Recorder'Courts (subsequently the Supreme Courts) at Madras and Bombay. In 1781 the right to appeal from the judgements of Sudder Diwani Adawlut of Bengal was also recognised, and Regulation XVI of 1797 limited  this right in point of time to a period of six months from the date of judgement and in point of value to cases where the  amount involved was not less than Rs 50,000 exclusive of costs. In 1818 the right of appeal was extended to the judgements of the Sudder Courts at Madras and Bombay. An order in Council issued in 1838 reduced the amount for the purposes of appeal from Rs 50,000 to 10,000, a proviso which was retained by the Charters of the High Courts in subsequent years. As originally constituted in 1833 the judicial committee of Privy Council consisted of the Lord President, the Lord Chancellor, and such of the Councillors as held or had held certain high judicial offices. By the Judicial Committee Act of 1871 four paid members were added whose place was subsequently taken by the four Lords of Appeal in Ordinary appointed under the provisions of the Appellate Jurisdiction Act 1876. Under the Act of 1883 four members formed the quorum but by a later Act this number was reduced to three.

 

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Provincial Criminal Courts

The plan adopted by Warren Hastings in regard to the administration of criminal justice was the retention of Mohamedam law and tribunals under the general control of the Nawab but subject to the supervision of the Company's Government. The system did not work satisfactorily. The delay in bringing the offenders to justice resulted in increased crime. The constitution of the Criminal Courts was also defective. Lord Cornwallis, by Regulations made in 1790 and 1793, entirely remodelled the judicial system. Courts of Circuits composed of English judges, and of the Qazi and Mooftee, were instituted. The authority of the Nawab Nazim was abolished, and his power s transferred to the Governor-General in Council who formed the Suddar Nizamat Adawlut, the highest of the provincial Criminal Courts. By Regulation II of 1801 the Sudder Nizamat Adawlut was directed to be composed of a Chief Justice and Puisne judges instead of the Governor –General in Council, and by Regulation XII of 1811 the number of these judges was increased. The Circuit Courts failed to provide administration of justice and were consequently abolished in 1829. Their powers were transferred to the Commissioners of Revenue who now became criminal judges in all cases of importance. But the task was found too heavy for them, and accordingly a Regulation of 1831 invested Zillah and city judges with criminal jurisdiction. The Bengal Sessions Courts Act was passed in 1871 which provided for the appointment of Sessions judges and Additional Sessions judges by the local governments in Bengal and northwest  provinces. The Act was a temporary measure and was repealed in 1872.

Judicial institutions similar to those established in Bengal were introduced in the presidency of Madras in 1802. Four Circuit Courts a Court of Criminal Appeal consisting of the Governor and Council were established. The former were established in 1845 and their jurisdiction was transferred to the judges of Zillah Courts.

               In Bombay it was the Magistrates, Zillah judges, and the Court of Circuit who exercised criminal jurisdiction.  A special court also existed for the trial of political offences. Hindus were tried by their own criminal law, Paris and Christians by English law. In1841 it was enacted that political offences should be cognisable by the ordinary courts.

 

 

 

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Provincial civil Court

The Sudder Dewany Adalawut, established at Calcutta and hearing appeals from the Provincial Courts, and the Board of Revenue, consisted originally of the Governor-General and Council. By a Regulation of 1801 it was made to consist of three judges to be selected from the members of the convenanted service, and in 1811 of a Chief Justice and as many Puisne judges as the Governor-General in Council would consider necessary. These regulations had the effect of separation of the executive and legislative from the judicial authority of the State. At the same time Zillah and City Courts for the trial of civil suits in the first instance, and six provincial courts for the purpose of hearing appeals from these were established; their jurisdictions were defined, and judges were directed to act, where no specific rules existed, in accordance with justice, equity and good conscience. There existed at this time five classes of provincial civil courts:

(i)  The lowest in grade were the courts of Commissioners called Sudder Ameens and Moonsiffs, empowered by a Regulation if 1793 to decide civil suits of the value not exceeding Rs 50.

(ii) Register Courts, empowered to try causes for amounts not exceeding Rs 200, when authorised by the judges. Their decrees were not valid until revised and counter-signed by the judge.

(iii) Dewany Adawluts or City and Zillah Courts.

(iv) Provincial Courts, hearing appeals from the courts of the third class.

(v) Sudder Dewany Adawlut, vested with the appellate jurisdiction and general power of supervision over the inferior courts in all suits of the value above Rs 100.

                    Under Regulation V of 1831 several important changes were made. Register courts and the Provincial Courts of Appeal were abolished. Moonsiffs' Courts were empowered to try suits of the value of Rs 300 and to the Sudder Ameens suits could be referred by judges of which the value did not exceed Rs 5,000. Original jurisdiction was given to the judges in all suits exceeding Rs 5,000 in value with an appeal direct to the Sudder Dewany Adawlut.

The system of Civil Courts established by Lord Cornwallis in Bengal was adopted in Madras presidency in 1802. Revenue and Civil Courts were kept distinct. As in Bengal the judiciary in Madras consisted of the Register Courts, Dewani  Adawluts, Provincial Court of Appeal, and the Sudder Court consisting of the Governor in Council. Where the value involved was Rs 45,000 or more, a further appeal lay to the Governor General in Council. By Regulation III of 1807 the Governor ceased to be a judge. In 1826 the heads of villages were appointed Moonsiffs with the power to try suits of the value not exceeding Rs 10. Village Panchayats could also determine suits of any amount within the jurisdiction of the villages. In 1843 the Provincial Courts of Appeal were abolished, and new Zillah Courts established.

                               In Bombay also Civil Courts were established after the Bengal Regulation of 1793. In 1845 the appointment of joint Zillah judges was authorised.

  

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Courts at Bombay and Madras

At Madras and Bombay Mayor's Courts based on the English municipal model existed till 1797 when they were replaced by Recorder's Courts, subject to the same limitations as were imposed on the Supreme Court at Fort William by the Act of 1781. They had jurisdiction over British subjects resident in the territories of the governments of Madras and Bombay or in the native states in alliance with those governments. Courts of request were established by a Charter of 1753. The Recorder's Courts in 1801 and 1823 respectively. The Courts of Request also were superseded by the establishment of Small Cause Courts in 1850.

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Establishment of Supreme Court at Fort William, Calcutta

The jurisdiction of the Mayor's and other Crown Courts in Calcutta did not cover Europeans who lived in the interior; their authority was limited to Calcutta and its dependent factories. In 1773 the Regulating Act was passed by the British Parliament which established at Fort William a Supreme Court of Judicature consisting of a Chief Justice and three other judges who were Barristers of not less than five years' standing and were appointed by the Crown. They had full civil, criminal and ecclesiastical jurisdiction, were empowered to administer the English law to all British subjects and persons in the employment of the Company situated anywhere. Appeal from the judgements of this court lay to the Privy Council, subject to certain restrictions. The Mayor's court at Calcutta was abolished, but the Court of Request continued to exist. The Supreme Court began to apply English rules of law and procedure, regardless of Indian conditions. It refused to recognise the government of Nawab or the authority of his agents and of the provincial courts. The boundary line between the   authority of the Supreme Court, which derived its existence from the Crown, and of the Council which was appointed by the Company, remained undefined.

                     To avoid vagueness an amending Act was passed in 1781 which clearly defined the powers and extent of jurisdiction of the Supreme Court. It provided:

(i) that the Supreme Court is not to exercise any jurisdiction in matters concerning  the revenue or acts done in collection thereof according to the usages of the country or the regulations of the Governor-General in Council;

(ii) that the Governor-General and Council of Bengal are not to be subject, jointly or severally, to the jurisdiction of the Supreme Court for anything counselled, ordered, or done by them in their public capacity;

(iii) that the Supreme Court is to have jurisdiction in all manner of actions and suits against all inhabitants of Calcutta, provided that the matter of inheritance, succession and contracts will be determined by the personal law of the parties, or where one of the parties is a Mohamedan and the other a Hindu by the laws and usages of the defendant;

(iv) that rules and forms for the execution of process are to be accommodated to the religion and manners of the Indians;

(v) that no action will lie in the Supreme Court against any judicial officer of the country courts in respect of any judgement or order of his court; and

(vi) that the existence of civil and criminal provincial courts, independently of the Supreme Court, is recognised; the appellate authority of the Governor –General and Council is also recognised and confirmed; and the Governor-General is also empowered to frame regulations for the provincial courts independently of the Supreme Court.

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Judicial Institutions in Bengal Reorganised by Warren Hastings

In 1771 the court of Directors resolved " to stand forth as Diwan" and bring the administration of revenue and justice under the immediate control of the Company's servants. The following year,Warren Hastings , who was appointed the Governor of Bengal, drew up a report for the reorganisation of judicial and revenue institutions which  was immediately adopted by the Government. Under this plan, in each district moffussil  Dewani  Adawluts, under the supervision of European collectors of revenue, were established and a Sudder Diwani Adawlut or Civil Court  of Appeal presided over by the Governor and members of the Council was instituted at Calcutta. Under the old system zamindars and farmers were responsible for maintaining peace in their estates and, in cases of robbery, they had to produce both the culprits and the property stolen. Hastings set up Criminal Courts or Fauzdari Adawluts, and transferred to these the jurisdiction formerly exercised by the zamindars. " A qazi and a mooftee, with the assistance of two maulvis, appointed to expound the law, sat to hold  trials for all criminal offences. The English collectors of revenue were, however,directed to superintend the proceedings of these courts, to see that the necessary witnesses were summoned and examined; that due weight was allowed to their testimony,and that the  decisions  passed were fair and impartial." The judgements of the provincial criminal courts were appealable to the Sudder Nizamat Adawlut established at Murshidabad and presided over by an officer appointed by the Nawab. These provincial courts derived their authority and jurisdiction from the Mughal Government in whose name the Company acted as the Diwan and were consequently known, as the Company's Courts as distinguished from the Crown's Courts established under the English royal charters.

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British period judicial system (series1)

Though the East India Company had established important trading settlement at Bombay, Madras and Calcutta, during the 17^th century they remained mainly merchants and factory owners who held their possessions by permission of and in obedience to the Mughal emperor (except in the Island of Bombay where they were fully sovereign as it had been ceded to them as dowry). However, from the beginning, English residents in these settlements remained subject to their own laws which were administered by their own officers. The first charter of 1601, granted by Queen Elizabeth, conferred upon the company not only the power to make reasonable laws but also the authority to execute and administer them and impose pains and penalties for disobedience. In 1618 Sir Thomas Roe, James I's ambassador to the Mughal court in India formally secured from the Mughal emperor, with regard to the factory at Surat, privilege of allowing the English residents to refer their disputes for adjudication to their own officers. Charles II's Charter of 1661 empowered the Governor and Council of each factory " to judge all persons belonging to the said Governor and Company or that should live under them in all causes, whether civil or criminal, according to the laws of the kingdom, and to execute judgement accordingly."

The Charter of 1683 gave the Company full power to make peace and war, and also provided for establishing a Court of Judicature to be held at such place or places as the Company might direct. In 1726 the Crown by Letters Patent established Mayor's courts on the English pattern at Madras, Bombay and Fort William (Calcutta), each consisting of a Mayor and nine Aldermen who had the power to hear all civil suits, actions and pleas between party and party. These were declared to be courts of Record from whose decisions an appeal lay to the Governor and Council in important cases a further appeal to the Privy Council in the United Kingdom. The Governor and five seniors of the Council were required to hold quarterly sessions for the trial of all kinds of offences other than treason. In 1753 by Letters Patent, Courts of Request (the predecessors of small causes courts) were established at each of the three presidency towns for the determination of suits in which the amount involved did not exceed Rs 20. Their jurisdiction was restricted only to the Europeans in express terms suits between Indians were not to be determined by the Mayor's courts unless by the consent of the parties. This was a self-imposed limitation which showed an intention on the part of the British Crown not to claim rights to territorial sovereignty over any portion of India.

The year 1765 marked the commencement of the East India Company's territorial sovereignty. Clive succeeded in obtaining from Emperor Shah Alam the grant of the Diwani or fiscal administration of Bengal, Bihar and Orissa. The Nizamat or criminal jurisdiction continued to remain with the Nawab at Murshidabad while the Company was to collect the revenue, maintain the army, and be responsible for the administration of civil justice. Not being familiar with the state of country in the interior,the Company did not interfere with the management of civil institutions till 1722, except by the appointment of a few European officials, with superior authority, to superintend the revenue and judicial administration. At this time Mohamedan criminal law was in force throughout the courts. The principal criminal courts were of the Nawab and his deputy, and of the Faujdars. In the province the zamindars and farmers were responsible for public safety and exercised civil and criminal jurisdiction over their respective districts. Their authority was supreme except in capital cases which were to be reported to the Nizam.  

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