EVOUTION OF JUDICIARY

1. HISTORICAL PERSPECTIVE
English people came to India in 1601 as a “body of trading merchants”1. On 31st December
1600 Queen Elizabeth granted the Charter to the Company which incorporated the London
East India Company “ to trade into and from the East Indies, in the countries and parts of
Asia and Africa for a period of 15 years subject to a power of determination on two years’
notice if the trade was found unprofitable”. Thus the company became the juristic person
with exclusive privilege of trade with the East Indies. The legislative authority was given to
the Company in order to enable it to regulate its own business and maintain discipline
amongst its servants. Due to subsequent interpretations of these provisions to meet the
requirements of controlling and administering the territorial expansion of the company in
India. Ilbert stated it as “ the germ out of which the Anglo- Indian codes were ultimately
developed”2.

Factory or Settlement of Surat.

A factory consisted if warehouses for storage of goods and residential building for its
employees. Out of this humble innocent looking beginning there grew an Empire subjugating
practically the whole of India. A little mistake in form of the commercial concessions by
jehangir in 1612 cost his successors the Indian Empire.

In those India the law was personal and the religious in character and the English didn’t like
to be governed by that law and the local courts. It is rightly observed3 that :

There was no concept of territorial law. there was no uniform or common Lex Loci to
regulate the inheritance, succession and other subjects. Practically in all civil cases, justice
was administered according to the personal laws of the Hindus and Muslims. The criminal
law was, however, entirely Muslim. The result of all this that the Englishmen tried to secure
from the Moghul Emperor the privilege to be governed in their factory by their own laws.
The Moghul Emperor was hardly interested in interfering with the internal affairs of these
people and bringing them under the local law in matters arising among them inter se. the
emperor, therefore, obliged the British people by acceding to their request for being governed

1
The first Englishman to set foot on Indian soil was Thomas Stephens. He set sail for India from Lisbon on 4 th
April, 1579 and reached goa in Oct 1579.
2
Ilbert, Government of India, p.10.
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by their own internal affairs through their own officers. The Moghul Farman, conceded the
right of self government to them. Wherever the British settled in India, they sought to
administer justice to themselves according to the English law and this proved to be a very
important single factor which exerted a profound effect on the growth and development of the
Indian Legal system”.

Madras Settlement

In 1639 on 22nd July, an Englishmann, Francis Day, acquired a piece of land from a Hindu
Raja of Chandragiri for the East India Company and the Raja empowered the Company to
mint money and to govern the whole city of Madraspatnam.

FIRST PHASE: 1639-1678

The Company’s factory at Fort was under the administration of an Englishman, who was
called an agent. The Agent and the council were authorised to decide both the civil and
criminal cases of English people residing at Fort St. George.

Though the Raja granted rights to administer justice to the English people, they thought it
better to allow old traditional courts to continue to govern the natives. According to the old
native system the Choultry courts was administering the justice in village area of
Masulipatnam. The court was presided over by the village headmen known as “Adigar”. An
Indian native Kannappa, a Brahmin by caste, was appointed first Adigar and Magistrate of
the town in 1644 to decide the petty civil and criminal cases. Due to charges of bribery and
corruption against Kannappa, he was arrested and placed behind the bars.4 One important
consequence of this incident was that European persons were appointed judges to preside
over the Choultry Court from 1648 onwards.

Charter of 1661- Charles II granted the company power to appoint a Governor and Council in
each of its settlements in India. They were authorised to judge all persons belonging to the
Company or to execute judgment in the respective settlements. In other words, even the
Indian inhabitants who were residing in the Company’s settlement were also included in the
jurisdiction of the Governor and Council. Thus the Charter expressly provided for the
application of English Law and empowered the Governor and Council to exercise control
over both the Executive and Judiciary. These people were not legal experts, this was clearly
visible in the trail of Mrs Dawes in 1665 where ignorance of the court was ludicrously

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exposed. Necessity of suitable legal assistance was greatly felt. As a result of this trail, the
Agency of Madras was raised to Presidency of Madras. The Charters of Charles II issued in
1669 and administer 1674 made it further plain that the King of England actually favoured
the establishment of Courts of Judicature to be administered by the East India Company.

Second Phase: 1678-1683

With the appointment of Streynsham Master as Governor in 1678, the whole judicial system
was reorganised under his guidance. The Governor and Council was designated as the High
Court of Judicature. It was clearly stated that the Court will meet twice a week and will be
authorised to decide all the civil and criminal cases with the help of jury of 12 men. The
Court was empowered to try Civil cases upto 50 Pagodas.

Proper arrangements were made for regular meetings of the Court of governor and council.
He also declared that English was recognised as the official language in Madras. During this
phase also the working of the Court was irregular and inefficient. As observed by Love,
prisoners were rotting in prison without a trail and much time was lost in consultations and
demand from the Company for more power.

Third Phase: 1683-1726

In order to curb the unauthorised activities of these interlopers and to safeguard the trading
interests, the Copmany obtained a Letters Patent from King Charles II in 1683. It empowered
the court of Admiralty was established at Madras. John Grey was appointed as Judge and he
was assisted by two other Englishmen. On 22nd July John Biggs was appointed as Judge
Advocate, his first duty was to preside at the Quarters Sessions. He gave 4 death sentences
which created terror amongst the inhabitants and converted the criminals into the assets of the
company by turning them into slaves of the Company.

In 1690 Mayor’s Court came into existence, a year before the Biggs death. In 1692, John
Delbon was appointed as Judge Advocate in the vacancy caused by the death of Sir John
Biggs. He was independent in his decisions and refused to decide the cases under any
pressure or be influenced by favouritism. He even gave judgement against his employees, the
Company, when they sued the Ex Governor Elihu Yale. The Company officials were not
happy at this event and waited an opportunity to remove him. Shortly afterwards Dolben was
made the victim of a bribe giver and the order of dismissal followed. The court of Admiralty
was functioning regularly up to 1704. After that Company was paid more attention to the
Mayor’s Court and the Court of Admiralty ceased to have its regular sittings which resulted
in gradual disappearance from the judicial scene.

The Company preferred to establish the Court under its own authority, as it was not willing to
invite English officers who were working in the judiciary of England under the crown. These
officers, because they were appointed under a Royal Commission, it made them arrogant and
haughty as the wind of extra ordinary honour entered their minds. The company officials
were afraid of interference by the British Parliament in the Company’s matters, thus, not
inclined to invite superior officials to its settlements in India.

DRAWBACKS

The court had no reputation for impartiality and incorruptibility. Love5, quoting Alexander
Hamilton remarks that “ the city laws and ordinance were there but everything was a farce for
by experience I found that few Pagodas rightly placed could turn all scales of Justice to which
side the Government pleased.”6

BOMBAY

The first important legislative work of the company was done by Gerald Aungier in 1670 7.
He reorganised the old judicial set-up of Bombay. Old laws which were initiated by Oxenden
were given a final shape and were classified into six sections. The Governor and Council
were authorised to appoint a judge. All the trails were required to be a jury of 12 Englishmen.
Where a party to a suit wasn’t English, only 6 were required to be Englishmen. Right to
appeal from the Court to the Governor and Council was also granted. There were 2 divisions
and each court consisted of 5 judges. The customs officer of each divisions, an Englishman
was empowered to preside over the respective courts. The judges of the superior and inferior
courts had no knowledge of even elementary principles of law, they were merely traders. The
judicial and Executive functions were performed by the same persons. As a consequence the
abuse of power created various new problems. In order to remove that defects Aungier
requested the Company to provide the persons were experts in law. the Company paid no
attention to it.

New Judicial Plan 1672- the judicial machinery was again organised. A new central court of
known as the court of judicature was established. The court was inaugurated on 8th August

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1672 by Aungier, in his inaugural address the Governor emphasised that all the inhabitants of
this island irrespective of their caste and creed had an equal title and right to justice. The
court of judicature had jurisdiction over all civil, criminal and testamentary cases. The court
sat once a week to try civil cases with the help of jury.

George wilcox, the first judge of the Court of Judicature died in 1674. In his place Niccolls
came, he was suspended and later dismissed by the council on various charges. As noted by
Malabari and Fawcett there is a view that the Niccolls was punished for his judicial courage
and independence which the executive did not relish.8 Regarding “ injudicious interference
with the Court by the Council” Keith says, “It seems probable that the chief weakness of the
court lay in fact that the judge was dependent on the goodwill of the council, as was seen in
dismissal of the Niccolls in 1677, but there is no clear proof.”9 Keigwen rebellion, which
began in December 1683, and continued up to November 1684, gave a death blow to
Aungier’s judicial system in the Island of Bombay.

In 1684 Dr. John, a person leaned in civil law, was slected by the company at England to be
appointed as Judge Advocate and also act as chief Justice of the Court of Judicature. John
Child, the Governor of Surat, was not in favour of accepting the theory of independence of
Judiciary which was adopted by Dr. St. John in his judicial decisions. It gave rise to conflicts
between the Governor General and Chief Justice. In 1685 the Governor got an opportunity
and powers of Dr. St. John to act as Chief Justice of the court of Judicature were withdrawn.
In words of Keith10 “this is suggestive of the period of prerogative run mad. Persons were
not appointed as judges not for their legal knowledge but for their pliability to the executive.

Revival of Judiciary Machinery: Period 1718 to 1728-

A new period in judicial history began with the revival and inauguration of Court of
Judicature by Governor Charles Boone. It differed from earlier courts as it was governed by
laws of Company and not by laws of governor and Council. the court of Judicature 1718
consisted of 10 judges in all. It was specifically provided that the Chief Justice and 5 judges
would be English and the remaining four would be Indians. An appeal from this court would
lie to the Court of Governor in Council in cases where the amount was involved was 100 or
more.

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The Dark Justice at Bombay: Rama Kamti Case

Rama Kamti was a rich and influential person. He was supporter of the company, on charge
that he was corresponding with one Angria, a private chief Kamti was arrested. Angria was
troubling the Company. The trail was held before Governor Boone and his council.

There was no conclusive proof whatsoever against Rama Kamti but a round about gossip
story by a witness. The charges against Kamti were drawn by Governor Boone and his
council. His servant was tortured by cutting of his thumb to extract evidence and a statement
implicating Kamti. His trail was held before an ad hoc tribunal which was presided over by
the Governor Boone. During the trail Parker objected to the torture of Kamti’s servant which
was inflicted at the instance of Boone. The result of showing this judicial independence was
his dismissal from office, by the Governor. After auctioning his property, claims against him
were being considered by the Governor and the council. The trail and conviction in this case
throws light on the methods and standards of administration of justice prevailing in those
days and also the moral attitude of the judges.

In appeals the members of the council constituted the appellate court with the governor.
Naturally, the executive was bound play a vital role in influencing the judges while deciding
the important cases. It appears that the Company’s authorities were not interested in granting
independence of judiciary and, therefore, the Executive always controlled the independence
of Judiciary. This also clear from the fact that during the tenure of Boone, 2 Chief Justices,
namely, Parker and Braddy were dismissed from their offices. This state of affairs continued
up to 1728. Under the Charter of 1726 the Mayor’s Court was established at Bombay in 1728
which replaced the old court of 1718.11

CALCUTTA

In 1699, the status of Calcutta was raised to that of Presidency and its Governor and Council
was entrusted with all the necessary administrative and judicial powers. The Collector who
was the Company’s officer, who was also appointed a member of the Governor’s Council at
Calcutta. The Company thus secured for itself a legal and constitutional status which made it
as good as Zamindari exercising full rights of Zamindari.

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In Criminal cases the Faujdari court, presided by an English Collector, was established to
decide criminal cases. The Collector was empowered to decide the criminal cases summarily.

In the civil court, the Collector presided over a civil court or the Court of Cutchery. The
collector decided cases in summary way on the basis of prevailing customs. The Collector in
the capacity of a Zamindar was also responsible for the collection of land revenue from the
natives of three villages. This led to concentration of power in Collector in the judicial system
of Calcutta. It was dealing with civil, criminal and revenue matters. All the judicial and
Executive powers were exercised by the Collector and the Governor and council. It created
conflict and confusion resulting in dissatisfaction.

CHARTER OF 1726
The Charter issued by King George I turned the new leaf in the evolution of judicial
institutions. Before 1726, as has already been seen, development of the Judiciary in each of
these places followed a course of its own without any historic uniformity and the system
established was hardly satisfactory. The Charter of 1726 introduced uniformity of approach
in this respect as in each of Presidency Towns which derived their authority not from the
company but from the British Crown.

It is considered as the ‘Judicial Charter’. In two respect, however, the Charter continued the
previous traditions. First, justice continued to be administered by non-professional judges,
and, secondly, intimate and integral relationship between the executive and the judiciary was
maintained. It was only after 1773 that the situation in regard to these two elements
underwent a change.12

THE DISCORD

Things did not improve and went from bad to worse with the passage of time. It is difficult to
attribute the causes of discord between the judiciary and executive. Much of difficulty arose
because of the personal attitudes of the people on whom devolved the responsibility of
working the various institutions. The Mayor’s Court were filled by the people having no legal
knowledge; they lacked the discipline of legal training: they merely had an abstract idea of
independence of the judiciary and, therefore, at times acted in a manner that would be
derogatory to a court. The judges of the Mayor’s Court did not always exhibit judicial
restraint or a dispassionate attitude. On the other hand, the persons constituting the

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government bore a court as an instrument of personal aggrandisement. Whenever the court
did not follow their dictates, they tried to ridicule and disgrace it in the public eye.

JUDICIARY WEAKENED

From the very beginning, the courts were given a stepmotherly treatment as is evident in form
the inadequacy of financial resources allowed to them. Personal equations and animosities
amongst the persons manning the various institutions, their notions of self esteem and
dignity, also played a part in accentuating bitterness and tension between the Executive and
the Judiciary. These feelings were manifested themselves in the Court-Council relationship.
A prudent, temperate and restrained attitude on the part of all concerned would have avoided
many difficulties which otherwise arose in the Presidency town. Vut the Company soon lost
its patience, there were only two ways out of the impasse either to keep the constitutions of
the Courts as it was but to define the vague points by means of law and regulations; or to
make the executive all the more dominant, and weaken the Judiciary by making it subservient
to the Executive. The first alternative was intricate and difficult, particularly, when
administrators and judges in this settlement lacked calibre and experience to work such
regulations. The Second alternative, though it constituted an unfortunate set back to the
development of independent and robust Judiciary in India and was thus detrimental to the
cause of justice, was yet easier and more effective than the first and inevitably the choice of
the Company fell on this alternative. The Company got the opportunity to execute its design
to weaken the Judiciary.

CHARTER OF 1753
In September 1746, the French occupied Madras and surrendered it to the British in August,
1749. During this period of the French occupation, the Madras corporation established under
the Charter of 1726 ceased to function. The lawyers advised the Company that the Foreign
occupation had put an end to the Charter of 1726 in its application to Madras and the fresh
Charter was necessary to revise the old institutions. Accordingly, King George II issued a
new charter on 8th January 1753. The Company utilised this opportunity to remove the
defects which had been experienced in the working of old Charter. The new Charter was
made applicable uniformly to all the three Presidency towns.