16th AUGUST 1772 EVOLUTION OF LAW IN INDIA – DIVANI AND FAUJDARI COURTS – WARREN HASTINGS

Evolution of Law: “A short history of Indian legal Theory”
Posted On May 13, 2011 by &filed under Legal Articles, Miscellaneous Legal Articles.


Introduction

History comprises of the growth, evolution and development of the legal system in the country and sets forth the historical process whereby a legal system has come to be what it is over time. The legal system of a country at a given time is not the creation of one man or of one day but is the cumulative fruit of the endeavor, experience, thoughtful planning and patient labour of a large number of people through generations.

With the coming of the British to India, the legal system of India changed from what it was in the Mughal period where mainly the Islamic law was followed. The legal system currently in India bears a very close resemblance to what the British left us with. As per the needs of the changing times changes and amendments were made, but the procedure which is followed not has its roots in the era of British-India. Little did the traders of the English East India Company while establishing their trade in India know that they would end up establishing their rule for about 200 years here. But the evolution of law as it is today did not come about in one go altogether. It was the Presidency Towns individually that were first affected by this change in hands of the governance of India after which the steps towards amalgamation of the judicial system were taken by the Charters of 1726 and 1753. To improve upon this, under the Regulating Act of 1773 Supreme Courts in the Presidency Towns and then under the Act of 1798 the Recorder’s Courts at Madras and Bombay were established. These were ultimately replaced by the establishment of the High Courts under the Act of 1861, which are still running in the country. It was only after independence in 1950 that the Supreme Court was established. Reforms and codifications were made in the pre and post independence eras and are still continuing. Thus law, as we know today has evolved through a complex procedure which is discussed in detail herein below.

Ancient Period

India has a golden history of over 5000 years. Therefore a comprehensive study of Indian legal history comprises of the historical process of development of legal institutions in Hindus and Muslim periods.

Pre-Mughal Era

The various sources of law relied upon by the kings at that time were shrutis, smritis, puranas, dharmasutras, dharmashastras, etc. The Arthashastra and Manusmriti were influential treatises in India, texts that were considered authoritative legal guidance.

Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. The political structure in the Vedic Period consisted of kingdoms, each tribe forming a separate kingdom. The basic unit of political organization was the kula (family). A number of kulas formed a grama (village), Gramani being the head. A group of gramas formed a vis (clan) and a number of vis formed the jana (tribe). The leader was Rajan (the Vedic King). The king (raja) was the supreme head of the legislative, executive and judiciary branches. The members of the council of minister could give advice to the king, but final decisions were left to the king. The ministers and other officials were directly appointed by the king. The sabha and the samithi were responsible for the administration of justice at the village level.

According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s court.

Early in this period, which finally culminated into the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearances of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition.

Mughal Era

The ideal of justice under Islam was one of the highest in the Middle ages.

The administration of justice was regarded by the Muslim kings as a religious duty.

Sources of Islamic Law are divided into Primary and Secondary Sources.

Quran is the first and the most important source of Islamic law. It is believed to be the direct words of God as revealed to Muhammad through angel Gabriel in Mecca and Medina. Muslim jurists agree that the Quran in its entirety is not a legal code.

Sunna is the traditions or known practices of Prophet Muhammad, recorded in the Hadith literature. Quran justifies the use of Sunna as a source of law.

Ijma and Qiyas are the secondary sources of Islamic law. There are 72 Muslim sects in all with the Shia sect being the most popular in India

Under the Moghal Empire the country had an efficient system of government with the result that the system of justice took shape. The unit of judicial administration was Qazi. Every provincial capital had its Qazi and at the head of the judicial administration was the Supreme Qazi of the empire (Qazi-ul-quzat). Moreover, every town and every village large enough to be classed as a Qasba had its own Qazi.

.During this period, the personal laws of the non-Muslims were applied in civil matters, but the criminal law was the Islamic in nature. Whenever there was a conflict between Islamic Law and sacred laws of the Hindus, the former prevailed.

Medieval Period

1600-1726

The charter of 1600 established the English East India Company in India. as per the charter of 1661 the English and the Indians residing under the Company came under its jurisdiction.

From the period ranging from 1661 till 1726, laws of equity and justice in conformity with the laws in England were followed. There was no codified law.

In Calcutta, the judicial system was based on the Company’s authority as a zamindar. This continued till the charter of 1726 was passed.

Before Madras attained the position of a Presidency in 1665 it had two courts namely, the Choultry Court and the Court of the Agent and Council.

By the charter of 1668 the Company was conferred powers to make laws for the island of Bombay.

From this period till the passing of the Charter of 1726, there were civil and criminal courts in these presidencies. In madras, there was the choultry court, the mayor’s court and the admiralty court as well. On the other hand, in Bombay till 1726 judicial systems were not stable and kept changing. Earlier there were courts like the Court of Judicature (1672) which dealt with civil and criminal cases and matters of probates and testaments, and a Court of Conscience to decide petty cases.

There was a system of appeals as well. In madras the appeals from the Mayor’s Court were filed to the Governor and Council. On the other hand, Bombay had Deputy-Governor and Council as its appellate Court. In Bombay this system elapsed due to lack of independence of the judiciary. In the following judicial system of Bombay an admiralty court was established with a Judge-Advocate as its head. This court apart from its existing powers enjoyed civil and criminal jurisdiction. Later a court of Judicature was established under this system after which the Admiralty Court lost its ground. The Admiralty court in Madras also became irregular by this time. Another system came about in 1718 in Bombay and this gave representation to the Indians as well by appointing 4 Indian Judges, known as Black Justices, in the Court.

Charter of 1726

In the subsequent years the Charter of 1726 was passed which granted special powers to the Company as was requested by it. Under this Charter the Mayor’s Court was established. This superseded all the other courts of Bombay, Madras and Calcutta. This was a court of record.

The Laws under this Charter were also applied in conformity with the laws in England on the principles of equity and justice. Appeals from this court could be filed in the court of Governor and Council and further in the court of King-in-Council in England.

Requisite independence was assured to the Mayor’s Courts but this along with their strict adherence to English laws became the cause of some difficulties like hostility between the Mayor and the Governor and Council, and non clarity regarding jurisdiction of the Mayor’s Court in respect of the natives. The judiciary did not possess expert staff for administering justice and the executive did not have respect for the judiciary

This system remained suspended while the French had occupied Madras which they later surrendered in 1749. Then the Charter of 1753 was passed in order to remove the difficulties of the preceding Charter.

This charter put the Mayor under the subjection of the Governor and Council in order to avoid disputes between the two. Suits and actions between the natives were expressly excluded from the jurisdiction of the Mayor’s Court unless both parties submitted them to its determination, and a Court of Requests was created to hear small civil cases. The defects of this Charter can be summarized by mentioning the executive ridden judiciary, failure of impartial judgment, judiciary suffering from lack of legal knowledge, limitation

of the jurisdiction of the Courts to Presidency Towns, and no representation of Indian Judges as opposed to earlier provisions in some courts in Bombay.

The Company’s financial break-down was the immediate cause for the enforcement of the Regulating Act of 1773. Section 13 of the Act provided for the establishment of a Supreme Court at Calcutta. The court, also a court of record with the power to punish for its contempt, had civil, equity, criminal, ecclesiastical and admiralty jurisdiction. Appeals against decisions of this Court and through the Court could be filed in all civil and criminal cases respectively before the King-in-Council. The establishment of this Court was a welcome as it was the first British Court in India consisting of lawyers, its jurisdiction was so wise that it covered all kinds of legal wrongs and that since all British subject came under its jurisdiction it ensured rule of law.

The Act of Settlement 1781 aimed at removing the ambiguities created by the former Act, but was not successful in its entirety.

With the increase in activities of the Company an urgent need of a lawyer-judge was felt to deal with new cases. The Charter in 1798 did the needful by establishing the Recorder’s Court at Madras and Bombay. This Court had similar jurisdiction and was subject to the same restrictions as the Supreme Court of Calcutta. In 1801 and 1824 Supreme Courts were established in Madras and Bombay respectively. The Constitutional powers, functions, limitations and jurisdiction of these courts were the same as that of the Supreme Court at Calcutta.

A parallel system of judiciary was running in the mofussil areas. The Company attained the Diwani of Bengal, Bihar, and Orissa in 1765. As per the plan of 1772 under Warren Hastings, the Courts of Original Jurisdiction were Mofussil Faujdari Adalat, the court of criminal jurisdiction; Mofussil Diwani Adalat, the court of civil jurisdiction and Small Cause Adalat. Under the Appellate Courts we had Sadar Nizami Adalat, the criminal court of appeals; Sadar Diwani Adalat, civil court of appeals. The Collectors started monopolizing the trade in the districts putting the end to this system and giving rise to a new plan of 1774.

Under this system, diwan or amil, acted as the judge of the Mofussil Diwani Adalat. The Mofussil areas of Bengal, Bihar and Orissa were divinded into six districts with a Provincial Council in each district acting as the Appellate Court. The Council started creating difficulties and monopolizing trade within its jurisdiction. This led to an end of this plan as well and a new plan of 1780 was formulated.

This plan separated the executive from the judiciary. Provincial courts were left with the function of collecting land revenue only. For civil cases, a Diwani Adalat was established from which appeals went to the Sardar Diwani Adalat. Though this system assured the independence of the judiciary there were certain set-backs.

For the administration of criminal justice in a more efficient manner Warren Hastings drew a scheme in 1781 under which for apprehending criminals, Judges of the Mofussil Diwani Adalats were authorised to work as Magistrates and a department headed by the Remembrance of criminal Courts was opened to look after the working of the said courts.

The Governor –General Lord Cornwallis (1786-1793) introduced changes in the judicial system in 1787, 1790, and 1793. He had thoroughly reorganized the civil and criminal judicial system in India in Bengal, Bihar, and Orissa. He for the first time introduced the principle of administration according to law.

In 1787 he merged the revenue collection and power to try the revenue disputes in the same hands of the magistrate who formed the Mal Adalat. Appeals from the Mal Adalat had to go to the Governor General.

In the year 1790 the policy of 1787 was annulled. Cornwallis took a great step to improve administration of justice in the Mofussil by reforming the criminal law. The scheme had three limbs: at the lowest were the magistrates in the district, then the courts of circuits, and ultimately there was the Sadar Nizamat Adalat at Calcutta (initially at Murshidabad). Sadar Nizamat Adalat, put under the control of Governor-General and his Council, was being assisted by the Muslim law officers who were to expound the law. But later he brought reforms to the plan in year 1793 and introduced the most famous plan of the history.

According to this plan the Supreme Court was divested of all its powers except for the power of appeal and the Collector was to be given civil as well as revenue cases. Executive was estranged from the judiciary in its entirety. He introduced professional lawyers or vakeels in the courts to appear on behalf of the parties to contest their case in order to increase efficiency.

Cornwallis did everything on structural and procedural side but he could not do much to reform the substantive law, particularly the criminal law which ‘was based on Muslim law and suffered from a number of defects’.

Modern period

PRE INDEPENDENCE:

The year 1861 also constituted a conspicuous landmark in the process of development of legal and judicial institutions in India. It was during this year that the steps were taken to establish High Courts at Calcutta, Madras and Bombay. These High Courts were not only better instruments of justice than the preceding courts, but also represented the amalgamation of the hitherto existing two disparate and distinct judicial systems, the Company’s Courts in the Provinces of Bengal, Bombay Madras, and the three Supreme Courts(established by the Royal Charter) in the Presidency town.

The High Court enjoyed the same power over all persons and estates. It had ordinary original, appellate and extraordinary original jurisdiction in civil cases whereas extraordinary and appellant jurisdiction in criminal cases. While exercising ordinary original jurisdiction the Courts were to apply the law of equity of the corresponding Supreme Court. In extraordinary original jurisdiction, the Courts applied the law of the corresponding local court, whereas in case of appellate jurisdiction the Courts applied the law of the court of original case filing. Acting as the court of appeal, reference or revision in Criminal cases, the courts applied the Indian Penal Code. The High Courts were empowered to make rules and orders for regulating all its proceedings in civil matters. By

the subsequent charters High Courts were formed in Allahabad (1875), Patna (1912), Lahore (1865) etc.

The King, in the capacity of the being regarded as the fountain of justice in English legal system, could hear any petition filed by a party with respect to any matter with the help of the Privy Council. This was later, exercised by the King in the form of appeals and not otherwise. Appeals from India could be filed as of right or with the special leave of the Privy Council.

After the mutiny of 1857 the Company’s Government came to an end and the administration of the country was placed in the hands of the Crown through the Secretary of State for India. For this purpose the Indian Councils Act, 1861 and 1892 were passed. But these Acts were not enough to satisfy the growth and organized demand for self-government by the Congress. Thus came about the Morley Minto Reforms in the year 1909 with its most important aspect being the increase of the representative element in the Legislative Councils and the extension of their powers. But the defects such as lack of true representation, etc led to the passing of the Government of India Act in 1919 which emphasized maximum autonomy to provinces with the target of achieving self-government. The dissatisfaction of this led to the Government of India Act, 1935 which aimed to establish federalism­­­­­­­­­­­­­­­.

A Federal Court set up in Delhi was established under this Act. It is believed that out of all the institutions set up under the Act; this was proved to be the most successful in operation. The Court was to consist of Chief Justice and not more that six judges. This Court had original, appellate, and advisory jurisdiction. The Court had exclusive original jurisdiction in all disputed between the federation and the units or between the units inter se.

An appeal could go to the Privy Council without leave, against the Judgements of the Federal Court given in its original jurisdiction and in any other matter with the leave of the Privy Council or of the Federal Court.

In the matter of the laws to be applied the very idea of a single omni-competent legislative body in India had been mooted in 1829 by the Governor–General, Lord William Bentick. Administrators at that time wanted to secure uniformity of law throughout the country and that was unattainable with three co-extensive legislative powers existing in the country. Charter of 1833 helped to receive the object desired. Under this the Governor–General of Bengal, nominated as Governor-General of India, proposed a uniform All India Legislation and thereby created a Legislative Council. The laws made by the Council were applicable on all persons and courts. It had Lord Macaulay appointed as its first Law Member whose powers were increased by the Charter of 1853. The creation of new council at Calcutta caused the centralization and concentration of power depriving the Councils of Bombay and Madras of their law-making powers.

An important step towards fulfilling the goal of securing a uniform and simple system of law in India through the process of integration of the general system of codes was taken by the Charter Act of 1833. Section 53 provided for the appointment of a Law Commission in India, subsequently forming the first commission of India with its members appointed by the Governor-General. The commissions’ most noteworthy contribution was the Penal Code prepared under the guidance of the Macaulay. The Commission then drew its attention to the complaint of the non- Hindu and non- Muslims and thus passed the lex loci report in 1837. The report proposed an Act making a declaration that except for Hindus and Muslims all others in Mofussil were to be put under English substantive Law to the extent that it suited the Indian conditions.

The Second Law Commission, formed in 1853 submitted two reports, one dealing with reforms of the judiciary and the other with the reforms of law. It recommended the amalgamation of the Sadar Adalats and the Supreme Court in all the presidencies and the adoption of uniform civil and criminal procedure codes.

The proposals of the first two Commissions resulted in the codification of the Code for civil and criminal cases in the year 1857 and 1861 respectively and the enactment of the Penal Code in 1860. The Limitation Act and the High Courts Act were passed in 1855 and 1861 respectively.

The Third Law Commission proved to be the most successful of all the Commissions. It drafted several codes in its seven reports, the important ones being Indian Succession Act, Contract Act (1872), Evidence Act, the new Limitation Act and the Divorce Act 1869. Interestingly, the Government at this time was also considering the preparation of the Law Digest of cases. But it ended abruptly due to the dispute amongst its members.

Many branches of law had been ascertained by now but certain were still un-codified resulting in great deal of complexities. To this, Lord Salisbury recommended the formation of a small body to codify the remaining laws and it resulted in the codification of the Transfer of Property Act, the Easement Act, the Trusts Act and revision of the existing Codes.

With the expiry of the Fourth Commission, there came an end of a large scale codification undertaken by the British Government. They had successfully enacted the necessary laws to suit the pressing needs of the country.

POST INDEPENDENCE:

The Indian Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act in 1949 to abolish the jurisdiction of the Privy Council in respect of appeals from India and also to provide for pending appeals.

The present day judicial system in India is quite complicated. It consists of a Supreme Court at its top, High Courts in the middle and the Subordinate Courts at the bottom. On January 26, 1950, the Federal Court gave way to the Supreme Court (inaugurated on January 28, 1950) under the new Constitution and thus began an exciting new era in Indian Legal History. The Supreme Court, highest court of the land enjoys a very wide jurisdiction. Under Article 131 of the Constitution the Supreme Court has an exclusive original jurisdiction in cases arise from the centre and the constituent States or between the States inter se. The Court even has appellate jurisdiction in case of appeals from its lower courts. Under article 32 of the Constitution the Court can issue directions, orders or writs for enforcement of the fundamental rights granted to the people. The President in case of matters related to public importance or treaties etc even seek the advice of the Supreme Court.

The Supreme Court is a court of record and it has the power to review its decisions.

It consists of the Chief Justice and twenty five other Judges appointed by the President of the country. The present Chief Justice is S.H.Kapadia..

Second in the hierarchy come the High Courts. As mentioned above the first High Court in the country was formed under the Act of 1861. But after independence the High Courts have also become the courts of record with appellate and original jurisdiction. They have been conferred the power to issue writs. The High Courts have superintendence over all the courts within its territorial jurisdiction. The decisions of the High Courts become precedents and are followed by the courts subordinate to it. Each State has its own High Court and a common High Court for two or more States can also be made.

With respect to Subordinate Courts, the Judges are appointed by the Governor and is controlled by the corresponding High Court.

Nyaya Panchayats are the judicial component of the Panchayat system and are the lowest ring of our judiciary. Their composition and power differs from State to State. They have jurisdiction over petty civil and criminal cases.

Our people did not have much say in the formation and reformation of our law during the British Period. But soon after independence Dr. Hari Singh Gaur moved a resolution in the Constituent Assembly recommending the establishment of a statutory law revision committee. But later the resolution was withdrawn on the assurance of the then Law Minister, Dr. B.R. Ambedkar that a more suitable machinery, would be devised for revising law. This concern was raised time and again and finally a non-official resolution in this regard was moved in the Lok Sabha on 19th November, 1954. This resolution was also withdrawn after a statement by the then Prime Minister Pt. Jawaharlal Nehru which led to the then Law Minister Shri. C.C. Biswas announcing in the Lok Sabha the decision of the Government of India, to appoint a law commission, the membership and terms of reference.

The commission, which was initially appointed upto 31st Decmeber 1956 and then extended from time to time upto 3oth September 1958, consisted of 7 members with Shri. M.C. Setalvad as its Chairman. The Commission submitted fourteen reports in all, thirteen on statutes revision, whereas the fourteenth one running into two volumes relates to reform in judicial administration. The report was the result of a long questionnaire and deliberations held in different parts of the country. One of the important recommendations of the Commission was of making Hindi as the common language throughout for all legal works and the regional languages for district and lower Courts.

The fifth report resulted in the British Statues Repeal Act, 1960 repealing 258 British Statutes.

The Second Law Commission (post independence) was appointed in 1958 under the Chairmanship of Shri. T.L. Venkatarama Aiyer for a period of three years. The commission made important reports on law of hire-purchase and marine insurance.

The third and fourth Law Commissions were under the Chairmanship of Shri. J.L. Kapur and submitted 16 reports and even drafted the Indian Post Office Act, 1898

Various Commissions have so far produced more than 200 reports and currently the 18th Law Commission (2006-2009) chaired by Justice A.S. Lakshmanan is in vogue.

Conclusion

The societies in the beginning were rudimentary and so were the laws of the societies. Laws have grown with the growth of society. This establishes a relationship between law and society, where law is an instrument of social change, and as Pound would put it law must be stable, but it must not stand still. To comprehend, understand, and appreciate the present legal system adequately, it is necessary to acquire a back-ground knowledge of the course of growth and development of the legal history.

A peculiar feature of the legal development in India was that for long the government endeavored to create a system of courts without ever attempting to develop a body of law. Conscious efforts to remove these defects were made by developing a coherent body of law. But the coherent system of law was developed only after the process of codification. Law then became more territorial and resulted in the abridgment of the differences of law between the resulted in the application of uniform law throughout the country. The independence of the judiciary is fairly well assured by the constitution itself and adequate precautions have been taken to help the judiciary to discharge their functions effectively. Law in the country is now mostly codified and is uniform throughout the country and the objective is now to update, reform and bring the law in conformity with the new social conditions prevailing in the country .In conclusion, we may say that the Indian legal system provides all the machinery for the expansion and preservation of the law.

Bhushan Patil's photo.
Bhushan Patil's photo.
Bhushan Patil's photo.
Bhushan Patil's photo.
Bhushan Patil's photo.
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Published : July 19, 2010 | Author : suchetamehra87
Category : Law – lawyers & legal Profession | Total Views : 18239 | Rating :

suchetamehra87
Sucheta Mehra, 4th year, B.A. LL.B(Hons, Hidayatullah National Law University

Development of Adalat System during the time of Warren Hastings

The administration of justice at the time Warren Hasting took over as Governor of Bengal was in a bad shape. It was almost verging on a total collapse. The dual system of government proved very defective and unsatisfactory. The courts had become the instruments of power rather than of justice, useless as means of protection but apt instruments for oppression. On realizing the fact that the system of double government had failed the company authorized the then Governor Warren Hastings to adopt such regulations and pursue such measures as shall at once ensure every possible advantage to the Company and free the ryots from the oppression of Zamindars and petty tyrants.

Warren Hastings hence proceeded to make major changes in the administration of justice. This paper work views the various reforms made by Warren Hastings during his time in India. This administration of justice maybe studied in four stages. To start with Warren Hastings realized the very fact that an impartial and regular administration of justice was extremely essential for creating conditions for a better collection of land revenue. Thus changes were made in regard to civil and criminal justice while various other provisions were also introduced. Moreover one of the major development which took place was that the three presidencies—Bengal, Bombay, and Madras— were divided into a number of districts for the betterment of administration. Lastly, the appointment of Impey helped in fulfilling the need of reforming the judicial system under the control and supervision of a powerful authority. In fulfillment of his duties, his work of compiling the Civil Procedure Code was quite recommendable. It was for the first time that the law was put on solid and certain grounds so that the people could know as to what the procedure of courts was.

Administration Of Justice: First Stage
The Judicial Plan of 1772 as been formulated by Warren Hasting consisted of 37 regulations dealing with civil and criminal laws. It was the first Anglo-Indian Code, which worked out on the basis of experience and common observations. An endeavour was made to adopt it to the manners and understandings of the people and exigencies of the country, adhering as closely as possible to their ancient usages and institutions. The idea was to retain, as far as possible, the native magistracy and codes of law, recorded and oral, to which the people had become accustomed. The plan aimed at correcting the defects without destroying the traditions of the local systems. Thus the diwani area of Bengal, Bihar, and Orissa was divided into several districts, each with an English collector as its head. This ‘district’ was the main administrative unit in the plan. The main features of Judicial Plan of 1772 may be explained under the following headings:

Civil Justice: A Mofussil Diwani Adalat was established in each district to decide civil cases. The collector was the judge of this court. The court took cognizance of all civil cases including property, inheritance, succession, caste, marriage, contracts, accounts etc. In the suits regarding inheritance, marriage, caste and other religious usages and institutions, the Hindu law was applicable to the Hindus while the laws of Koran was applied to the Mohammedans. The collector in matters of Hindus and Muslims was helped by pandits and kazis respectively who expounded the law. Appeals from these courts were to be heard by the Sadar Diwani Adalat at Calcutta where the subject matter of the case exceeded Rs. 500. This court comprised Governor as its President and at least two members of the council aided by Diwan Treasury and Chief Kanungos.[1]

Criminal Justice: A Mofussil Faujdari (or Nizamat) Adalat was established in each district for the trial of crimes and misdemeanours.[2] This court was assisted by a Kazi or Mufti and two Maulvies who expounded the law, while the Collector had a general supervision over the court. The court had full power to decide and punish all criminal cases though they were not empowered to award death sentence. In such cases, the court’s decision was submitted to Sadar Nizamat Adalat for confirmation and finally to the Nawab for his sentence.

Sadar Nizamat Adalat, established at Calcutta, was presided by an Indian judge known as Daroga-i-Adalat who was to be assisted by the chief Kazi, chief Mufti and three Maulvies to hear the appeals from the Faujdari Adalat.

Revenue Administration: The whole revenue system was reorganized under the Hastings plan of 1772. The revenue Boards at Murshidabad and Patna were abolished and a supreme authority called the Board of Revenue was set up at Calcutta which consisted of the Governor and all the members of the Council. The Treasury was also shifted to Calcutta. Further, the district supervisors were appointed as Collectors of revenue and also native Naib Diwans as heads of the native executive in districts.[3]

Moreover, the Board of Revenue comprising Governor and his Councilors at Calcutta sat twice a week for issuing necessary orders and instructions to the Collectors of Districts and inspecting, auditing, and passing the revenue accounts.

The plan of 1772 was in many respects a boon to the people at that time. The change in judicial system brought back the confidence of the people in the government and the justice. However, a grave defect in the plan was that the Collector acted as the administrator; the Judge and the Magistrate in the district i.e. there was over-centralisation of powers in a single official.[4]

Miscellaneous Provisions: A few provisions were made to promote pure and impartial justice. All cases were to be heard in open court. All adalats were to maintain proper registers and records. District adalats were to transmit abstracts of their records to Sadar Adalats. This precaution was necessary so as to discourage judicial officers from misusing their power. To make justice inexpensive, the old vexatious impositions on administration of justice were abolished and moderate fees were prescribed for trial of civil cases which was bound to give relief to people. To supplement the work of the courts, the method of arbitration was also provided for.

Despite the merits of Judicial Plan of 1772, it had certain demerits which are stated as follows:
One of the major defects of the Plan was that there was over-centralization of powers in a single official, namely, the Collector. He was overburdened with heavy work as he was singularly required to shoulder the responsibility as an administrator, revenue collector, civil judge and a magistrate in his District.
The Judicial Plan had a limited application only in the territory of Bengal, Bihar and Orissa. It was based on an erroneous assumption of Hastings that Indian population consisted of only the Hindus and Muslims. There were other communities and races for which there was no provision made in the Judicial Plan.[5]Though the functioning of Adalats was under the supervision and control of the Sadar Adalat at Calcutta, but in absence of adequate means of communications it was almost impossible for the government at Calcutta to keep a constant watch on the working of the Collectors of the districts. In absence of an effective control, the Collectors indulged in private trading and misused their position and power for personal gains.
The judges of the courts being Englishmen, they did not have knowledge of personal laws of Hindus and Muslims. Though native laws officers were appointed to assist the English judges, but they could easily misguide the judges by deliberately misinterpreting the provisions of the Quran and Shastras.
The functions of revenue collection and civil administration were combined in a single official, the Collector. Therefore there was no separation between revenue collection and civil administration. Obviously, the Collector paid more attention to revenue collection than the civil administration.

Administration Of Justice: Second Stage
The abolition of the institution of Collector in 1773 on the advice of the Court of Directors of the Company in England up-set the judicial arrangement of 1772 and a new Plan became an urgent need of the time. Warren Hastings prepared new Plan on November 23, 1773 which was implemented in January 1774.[6]The various changes made in regard to revenue, civil justice, criminal reforms are as follows:

Revenue: Collectors were re-called from the districts and in their place an Indian officer, called Diwan or Amil, was appointed. He was to act as a judge of the Mofussil Diwani Adalat and collected the land revenue also. The entire Mofussil area in Bengal, Bihar and Orissa was divided into six divisions with the Headquarters as Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and Patna.[7] Each division had a Provincial Council consisting of a Chief and four senior servants of the Company. A Committee of Revenue was instituted at Calcutta for superintending that Division, consisting of two members of the Council and three senior servants, assisted by a Diwan and others. The Councils and the Committee were to supervise the collection of revenue in their Divisions. Indian Naib Diwans were appointed in the districts under each Provincial Council to look after the same work. Complaints against the Head Farmers, Naib Diwans, Zamindars and other principal officers of the government, relating to their conduct in the revenue, were to be decided by the Provincial Councils. Aggrieved parties might ultimately go to the Board of Revenue at Calcutta.

Civil Justice: The provisions relating to appeals in civil cases were also considerably liberalised under the plan of 1774. Now all cases decided by the Mofussil Diwani Adalats were appealable to the Provincial Council irrespective of the value of the subject matter of the suit. There was also a provision for second appeal to the Sadar Diwani Adalat in cases exceeding the value of Rs. 1000/-.[8]
Criminal Reforms: The Officers of the Faujdari Adalats were forbidden to hold farms or other offices in the Mofussil and were obliged to reside in their districts on pain of forfeiting their employments. Complaints against them were to be lodged with the Governor-General who would refer them to the Sadar Nizamat Adalat for inquiry and determination.

Although the new system was an improvement over the earlier one, the change did not give good results for long. The Council took the place of the Collector in creating the difficulties and monopolising the trade within its jurisdiction. Warren Hastings detected this defect very soon but he could not make any change till 1780 when entirely a new modified system was established.

Administration of Justice: Third Stage
The defects of the system set up in 1774 were seen in the Patna Case[9] which is concerned with the conflict between the jurisdiction of Supreme Court and function of adalat in mofussil areas.

As it was in practice those days, the Mofussil Adalat as well as the Provincial Council employed services of Kazis and Maulabis to interpret the Muslim law. The judicial commission arrived at a decision after taking into account the consultation of the Maulabis and Kazis. Thus it became a practice to neglect judicial work.

In this case, the Maulabis and Kazis were given the power to take the evidence of the case and arrive to a decision. No established law was followed while taking the evidence and the Provincial Council passed a judgement based on the evidence collected by irregular procedure.

The Supreme Court held that the Provincial Council did not delegate its judicial decisions according to the procedures held by the Supreme Court. Thus an order was passed by the Supreme Court to send the wrong-doers to jail.

The decisions of the Supreme Court were criticized to a large extent. Following this, the work in Mofussil Adalat came to a halt because no officers in this adalat were ready to take up judicial work as they will have to go to jail. The work of revenue collection also suffered because most of the revenue officers left their jobs.

The defect when came to the knowledge of Warren Hastings, could not continue any longer and he remedied it by giving a new judicial plan promulgated on 11 April 1780.[10]
The basic feature of this plan was the separation of revenue matters from judicial matters. Henceforth, there were established separate authorities

(a) To deal with the collection of land revenue and to decide the disputes arising there from and
(b) For the pur­pose of deciding other disputes.

Under this system the provincial councils were left only with the function of collecting the land revenue and deciding revenue disputes and other judicial functions were taken away from their hands.

Diwani Adalat
A new court, called the Provincial Court of Diwani Adalat was established at each of the headquarters of the six divisions. This Adalat was presided over by an English covenanted servant of the Company who was called the Superintendent of the Diwani Adalat. He was to be appointed by the Governor-General and Council. This Court was to hold its sittings thrice a week and decide civil cases pertaining to property, inheritance and contracts. It was also empowered to hear cases relating to inheritance and succession of Zamindari and Talukedari which were hitherto within the purview of the Governor and Council. The decision of the Provincial Court of Diwani Adalat in cases upto the value of Rs.1000/- was final and in cases exceeding this value, an appeal lay to the Sadar Diwani Adalat at Calcutta which consisted of the Governor General and Council.

The plan of 1780 was certainly a great improvement upon the plan of l774.

Its main merit lay in its effecting the separation of the judicial from the executive functions. It was a welcome change. The plan, however, suffered from defects also.

The Superintendents of the Diwani Adalats were not selected from the senior servants of the Company. Some of them were illiterate, ignorant of the Eastern languages and most extravagant, dissipated young men.

There was a tendency of the new Adalats to come into conflict with the Provincial Councils. The Governor-General-in-Council had no time to sit at the Sadar Court to hear appeals and supervise the work of these Courts. Without the support and control of some powerful authority, it was impossible for them even to subsist; there was possibility of their sinking into contempt or becoming instruments of oppression.
There were only six Diwani Adalats. This number was very small in a vast area of Bengal, Bihar and Orissa. This resulted into great expense on the part of the suitors, waste of their time and energy and inconveniences they suffered from, on account of long journeys. Even those persons, whose cases, not exceeding Rs. 100 in value, were referred to Zamindars or public officers, had to come at least once to the Divisional Headquarters for such reference. The Zamindars or public officers as honorary Judges. There was thus a danger of their abusing the authority to their own advantage. Further the paucity of the Courts put a very heavy strain on the Diwani Adalats.

The Provincial Council which was left only with revenue functions also had the power to decide the disputes relating to revenue matters and to that extent it worked as a court in its own cause which was against the principles of natural justice.
Appointment of Impey at Sadar Diwani Adalat:

There was an urgent need of reforming the judicial system under the control and supervision of a powerful authority. From the beginning, the business of the Sadar Diwani Adalats was not only to receive appeals from the inferior Courts in all cases exceeding a certain amount but to receive and revise their proceedings, to attend to their conduct, to remedy their defects and to form generally such regulations and checks as experience should prove to be necessary to the purpose of their institution. The Governor-General and Council, who previously constituted the Sadar Diwani Adalat, admitted their incapacity of exercising these powers and expressly stipulated that Chief Justice Sir Elijah lmpey should act as the sole Judge of the Sadar Diwani Adalat on a salary at their pleasure. They thought that this would lessen the tension between the Council and the Court, would facilitate and give vigour to the course of justice, lessen the burden of the Council and add, to its leisure for occupations more urgent and better suited to the genius and principles of Government. The Governor-General and the Councillors were non-lawyers. Impey, being an experienced and trained lawyer was expected to discharge judicial functions in a far better way and curb out evils from the judicial establishment of the Company.[11]

Elijah Impey was, therefore, appointed the sole Judge of the Sadar Diwani Adalat in October, 1780. He continued in this office till November, 1782 when he was recalled to England. In fulfillment of his new duties, Impey prepared thirteen articles of Regulations for the guidance of the Civil Courts. They were afterwards incorporated, with additions and amendments, in a revised Code, consisting of ninety-five articles, which was passed in July, 1781. This was the first Civil Procedure Code of India. The aims were to explain such rules, orders, and regulations as might be ambiguous, to revoke such as might be repugnant or obsolete to frame a consistent Code, to formulate the procedure and jurisdiction of the civil courts, to prescribe a general table of fees, to make the law of civil procedure cognizable to the people, to provide for arbitration and appeals to the Sadar Diwani Adalat, to provide for the limitation of suits, giving in most cases a term of twelve years, to protect the litigating people from the extortions or frauds of the unscrupulous officers of the Courts, and so on.

Reforms by Impey:
Sir Impey remained in his office for about a year but during this time he made very important reforms in the administration of judiciary of that time. He issued regulations for the improvement of all the courts existing in the Mofussil area. By those regulations the following new changes were made.

1. The Diwani Adalat at the divisions were directed to hear all the cases in the open court after administering proper oath to the witnesses. The law officers should be used only for the pur­pose of expounding the law on the facts which the court had deci­ded, i.e. the law officers had no power to decide the facts or hear the witnesses or the parties. The procedure which was found to have been followed in Patna Case of reporting the matter to the court by the law officers was stopped by this Regulation.

2. The number of the Diwani Adalats was increased from 6 to 18 so as to avoid the inconvenience to the people coming from long distances and also to reduce the arrears of work.

3. The most distinguished work which Impey did was the compilation of a Civil procedure Code which was first of its kind ever introduced in this country. The Code was promulgated by the Governor General and Council on 5 July 1781. Although the Code did not make very far reaching Changes, it put the law on solid and certain grounds so that the people could know as to what the procedure of courts was. It also bound down the courts to follow the procedure specified in it. The Code consisted of 95 clauses.

4. The provision regarding the application of personal laws in certain categories of cases viz., inheritance, marriage, caste and other religious usages or institutions was incomplete so far as the rule of decision in other cases was concerned. Besides, adding the word ‘succession’ to the word ‘inheritance’, Impey filled up the gap by providing that in all cases for which no specific directions were given, the Sadar Diwani Adalat and the Mofussil Diwani Adalats were to act according to justice, equity and good conscience, This was a remarkable provision which completed the rule of decision in all civil cases of Hindus and Mohammedans.

5. Another important feature of the Plan was putting the Sadar Diwani Adalat on a· sounder basis. Impey brought the union of the powers of a Board of Superintendence with those of a Court of Appeal. Laziness, laxity, impatience and want of method were the faults of which young, inexperienced Judges, devoid of any legal know1edge and having only an imperfect knowledge of languages of their respective huge districts, were guilty. Superintendence was, therefore, as urgent as appeal. The Sadar Diwani Adalat was, therefore, to perform the following functions: (a) To hear appeals from the lower Courts in cases exceeding Rs. 1,000; (b) to decide any matter of civil nature referred to it by the Governor-General-in-Council; (c) to exercise control and supervision over the lower Court, firstly, by receiving an original complaint, cognizable by a lower Court which refuses to entertain it, and then referring it to Mofussil Diwani Adalat for expeditious disposal, and secondly, by suspending a Judge of a lower Court on ground of misconduct and reporting the matter to the Governor-General-in-Council for final decision.

Recall of Impey
The appointment of Impey to the Sadar Diwani Adalat was actually a good step for the reformation of judicial system and he himself also worked very vigorously and sincerely to reform it. But his holding the twin offices of the Chief Justice of the Supreme Court and the Judge of the Sadar Diwani Adalat was not favoured by the authorities in England. They thought it was a violation of The Regulating Act which had established a judicial system at Calcutta independent of all control from the Company. To them, by accepting the judgeship of the Sadar Diwani Adalat, Chief Justice, Impey had put himself under the subordination of the Company from whom he got his appointment and also the salary as judge of the Sadar Diwani Adalat. Although after few months Impey refused to draw his salary as judge of the Sadar Diwani Adalat unless the Lord Chancellor gave him a clearance. His sincerity was doubted in England and he was recalled on May 3, 1782 from his office of judgeship of the Sadar Diwani Adalat as well as from the Chief Justiceship of the Supreme Court. After the recall of Impey the Sadar Diwani Adalat again came into its previous from, i.e., the court was again constituted of Governor General Council.

Though Impey was accused of compromising his judicial independence as a Crown’s Judge, and was, therefore, called back, he gave no opportunity to anyone to say that he, as the sole Judge of the Sadar Diwani Adalat, acted in a way which compromised his judicial independence as the Chief Justice of the Supreme Court. Whatever the criticism, his Code was an extraordinary contribution giving new directions to Judges of the Diwani Adalats and litigants. Its compilation was the first attempt of its kind in India, and it made the law of civil procedure certain to some extent. Under the judgeship of Impey the whole judicial system indefinitely became much better. Thus the act of appointing Impey was later regarded as one of the wisest measures which Warren Hastings carried through.

Administration of Justice: Fourth Stage
Under the Plan of 1772, a Sadar Nizamat Adalat was established at Calcutta. In 1775, it was shifted to Murshidabad probably to avoid any interference from, and conflict as to jurisdiction with, the Supreme Court. There it was put under the authority of the Naib-Nazim Reza Khan. In 1776, a plan for criminal justice from Reza Khan was adopted, under which twenty-three Fauzdari Adalats in all were established in the districts. But as the system had once become loose and the Collector or the Governor-General and Council could not get enough time to have an effective control over these courts, they failed to pro­vide justice to the people. Justice was neither given in time nor any principles of justice was taken into consideration. The accused had to remain in detention for years before his trial was finalised. The conditions of prisons were inhuman. There were number of defects in the system which required total overhauling of criminal administration of justice. The Mohammedan law of crimes was also very defective. Warren Hastings was quite conscious of all this and in the year 1781 he drew a scheme for some reforms in the criminal judicial administration.

Reforms in the Criminal Judicature
The following reforms were made by Warren Hastings in the Criminal Judicature:
In order to devise a machinery to arrest criminals and to bring them to trial, the Judges of the Mofussil Diwani Adalats were appointed as Magistrates also. They were, however, not given, for the time being any jurisdiction to try them. They were to apprehend those persons who were suspected of having committed crimes and send them to the nearest Faujdari Adalats for trial with written accusations.
To have an effective supervision over the proceedings of the criminal courts including the Sadar Nizamat Adalat, Warren Hastings created a separate department at Calcutta to receive monthly reports and returns of proceedings, lists of persons apprehended and sent for trials by Magistrates, details of charges leveled against them, and the lists of persons released, convicted, and put in confinement by the criminal courts.

A covenanted servant of the Company was appointed to act under the Governor-General as head of this Department, with the title of the Remembrancer of the Criminal Courts. He was incharge of all the reports dispatched by various Magistrates and courts. He was to analyze these reports, prepare extracts and arrange them in a proper way. This is how a check was to be maintained on all persons entrusted with the administration of criminal justice.
But the control exercised by this officer was very weak and imperfect. The system did not prove to be effective. The Remembrancer depended for information on the reports of various courts and it was not difficult for the latter to manipulate them so as to present a favourable picture of the things and to conceal the real state of affairs from the Government.

In 1782, the number of Faujdari Adalats was reduced from twenty-three to eighteen. While in 1785, for more speedy and effectual administration of criminal justice, the Magistrates were empowered to try petty offences; but in all cases affecting either the life or limb of the accused persons or subjecting them to imprisonment of more than four days or to corporal punishment exceeding fifteen stripes, the Magistrates could not try the accused themselves but to send them to the Faujdari Adalats. This particular provision was made soon after the departure of Warren Hastings to England.[12]

Conclusion
The work of Warren Hastings has left a deep impact on the History of India. Though on one hand his contributions to the administration of justice are appreciable to some extent, but on the other hand the reforms made by him had its own flaws.

Appreciating his contributions, the various reforms implemented by him justify that he was not only a capable administrator but also a great inventive genius. He adopted the method of “trial and error” in uprooting the evils of the existing judicial and executive systems and never hesitated even in taking bold steps to remove such evils. As the first Governor-General he proved himself as one of the most faithful servants of the English East India Company, who played a vital role in further strengthening the foundation, which was earlier laid down by Clive, for the future expansion of the British Empire in India.

Now taking into account his flaws, one may notice that, certain areas like the constitution of criminal courts, the defects and severity of Muslim criminal law, the mode of trial and proceedings in the criminal courts, which mainly required vital reforms and special attention were left untouched by him. While on the other hand, he only touched the fringe of the whole problem of improving the criminal justice.

But considering his limitations which arose due to his conflict with hostile Members of the Council, wavering support of the Company’s Directors in England, antagonistic interests of political parties in England prejudicing his reputation, his failure to implement his ideas and plans in this regard, is justifiable.

Bibliography
Books Referred
· Dr. N.V. Paranjape, Indian Legal & Constitutional History, 5th Edn., Central Law Agency
· M.P Singh, Outlines of Indian Legal & Constitutional History, 7th Edn., Universal Law Publishing Co. Pvt. Ltd.
· Prof. J.K. Mittal, Indian Legal & Constitutional History, 1st Edn., Allahabad Law Agency.
· Prof. M.P.Jain, Outlines of Indian Legal &Constitutional History, 6th Edn., Wadhwa and Company Nagpur.
——————————————————————————–
[1] See, Dr. N.V. Paranjape, Indian Legal & Constitutional History, 5th Edn., Central Law Agency
[2] See, Prof. J.K. Mittal, Indian Legal & Constitutional History, 1st Edn., Allahabad Law Agency, P. 37
[3] Ibid
[4] Supra 1
[5] See, M.P Singh, Outlines of Indian Legal & Constitutional History, 7th Edn., Universal Law Publishing Co. Pvt. Ltd.
[6] Ibid.
[7] See, M.P. Jain, Outlines of Indian Legal History, 6th Edn., Wadhwa and Company Nagpur, P. 65
[8] See, Adalat System in India available at http://www.findarticles.com
[9] See, Prof. M.P.Jain, Outlines of Indian Legal &Constitutional History, 6th Edn., P.77
[10] Supra 8
[11] See, Prof. J.K. Mittal, Indian Legal & Constitutional History, 1st Edn., Allahabad Law Agency, P. 39
[12] Ibid

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Chronology of British East India Company Rule in India 1498-1858
Updated on January 12, 2014
The Europeans were trading with Indian subcontinent though the route of West Asia, but as there were conflicts between Europeans and Arabs, this route was closed. So Europeans started to search a new route to reach India. in 1498, Vasco Da Gama reached Calicut, a trade city on western shore of India. This gave a way to establish new trade relations with India to the Europeans. Soon the Portuguese, Dutch, French and British succeeded to establish their own rule on various regions of India. However, in later period British rulers won in this race by defeating French rulers. Britishers ruled most of the India until 1947, while the Portuguese ruled a small region until 1960. Here is the timeline:

15th Century

1498: Portuguese explorer Vasco D Gama arrives at Calicut, a South Indian city on Western shore of India. It was 20th May of 1498.

16th Century

1509: Afonso de Albuquerque a Portuguese General establishes Portuguese rule in Goa, a region on the western shore of India.

1600: British East India Company founded.

British East India Company Flag 1801
British East India Company Flag 1801
Source: Wikimedia Commons
1601 to 1700

1601: Dutch East India Company Established

1613-14 East India Company sets up a trading post at Surat, West Coast of India.

1615: East India Company acquires its first territory in Bombay, now known as Mumbai.

1615: Sir Thomas Roe becomes Ambassador of Britain to the court of Mughal Emperor Jahangir

1615 to 1618: Mughal Empire grants Britishers the right to trade and establish factories in the empire.

1640: Trading post established by Britishers at Madras (Now Chennai)

1690: Trading post established by Britishers at Calcutta (Now Kolkata)

Warren Hastings, First Governor General of India
Warren Hastings, First Governor General of India
Source: Wikimedia Commons
1701 to 1800

1740 to 1748: First Anglo-French War

1749 to 1754 Second Anglo-French War

1756 to 1763 Third Anglo-French War

1757: Battle of Plassey, British East India Company defeats Nawab of Bengal and his French allies. Company rule on Bengal established

1765: Lord Clive becomes Governor of Bengal

1765 Treaty of Allahabad between Mughal Emperor Shah Alam II and Lord Clive, the Governor of Bengal.

1767 to 1769 First war between British and Mysore

1772 to 1785 Warren Hastings becomes Governor of Bengal

1773: Regulating Act Act imposed on East India Company by Parliament of Britain to Company Rule in India.

1774: Warren Hastings becomes first Governor General of British India

1775: Sir William Jones founds Bengal Asiatic Society

1775 to 1782: First Anglo-Maratha War took place at Pune

1780 to 1784 Second war between Britishers and Mysore

1784: British Parliament imposes Pitt’s India Act to bring company rule under control of British Government.

1786: Lord Cornwallis becomes Governor General of India

1793: British Parliament passes Company Charter Act to renew the charter issued to East India Company and to continue Company Rule in India

1798: Lord lord wellesley becomes Governor General of India

1798 to 1799: Fourth War between Britishers and Mysore

1799: Tipu Sultan dies.

1801 to 1858

1802 to 1805: Second Anglo-Maratha War, took place at Central India, resulting British Victory.

1805: Sir George Barlow becomes Governor General of India

1813: British Parliament act to renew Company Charter

1813: Lord Hastings becomes Governor General of India

1817 to 1819: Third Anglo-Maratha War took place in the state of Maharashtra

1823: Lord Amherst becomes Governor General of India

1824 to 1826 First Anglo-Burmese War resulting in British victory

1828: Sir William Beatings becomes Governor General of India

1833: Company Charter

1835: Sir Charles Metacalfe becomes Governor General of India

1836: Lord Auckland becomes Governor General of India

1839 to 1842: First Anglo-Afghan War, Afghans defeat East India Company

1842:Lord Ellen borough becomes Governor General of India

1843: Sindh province merged into British India

1844: Lord Henry Hardinje becomes Governor General of India

1844: First Sikh War, took place in Punjab resulting British victory

1848: Lord Dalhousie becomes Governor General of India

1849: Punjab merged in British India

1852: Second Burma War. British rule imposed on South Burma

1853: Company Charter Act to renew Company Rule in India

1857 to 1858: Nationwide Indian revolt against British rule.

1858: British victory on the rebellions

Indian States During Revolt of 1857

Map of Indian States during revolt of 1857
Map of Indian States during revolt of 1857
Source: Wikimedia Commons
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MG Singh profile image
MG Singh 19 months ago from Singapore

Good account of history

teaches12345 profile image
teaches12345 19 months ago Level 4 Commenter

It is always interesting to learn the history of other countries. I am surprised at the English influence in the early history of this country. Thanks for the information.
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