MODULE II

(PERIOD 1639-1726)
ADMINISTRATION OF JUSTICE IN BOMBAY

PERIOD 1668 – 1726

Portuguese were the 1st European to acquire the island of Bombay in 1534 from
the King of Gujarat in 1661. Portuguese King Alfonsus VI transferred the island
to Charles II as Dowry on the marriage of his sister Catherine with the British
King. Charles II transferred it to the East India Company in 1668 for an
insignificant annual rent of 10 pounds.

JUDICIAL SYSTEM –

Before 1726, the Judicial system the Island of Bombay grew in Three Stages –

1) First Stage – (1668 – 1683)

2) Second Stage – (1683 – 1690)
3) Third Stage – (1781 – 1726)

CHARTER OF 1668 –

The political position of Bombay was quite different from that of

Madras, the King of Gujarat and from that of Madras, the king of Gujarat and
from that time onwards it was under the political control of the Portuguese. In
1668, the charger authorized the company the other comprised of Mahim, Parel,
Sion and Worli. A separate court of judicature was established. For each
division at Bombay and Mahim. Each court consisted of Five Judges, the
custom officers of each division, an Englishman, was empowered to preside
over the respective court. Three Judges formal the quorum of the court. As it
was not possible for an Englishman to have adequate knowledge of India Laws,
some Indians were also appointed Judges to assist him in the court of each
division. The courts were authorized to hear, try and determine cases of small
thefts and all civil actions up to 200 (it was a Portuguese Coin 20 Xeraphins
were equal to nearly Rs.150) in value. An appeal from the court of each division
was allowed to the court of Deputy Governor and Council. A part from the
appellate Jurisdiction the court of Deputy Governor and Council also had
original jurisdiction in important. Felonies which were to be tried with the help
of Jury and the laws of the company. Englishman was under the jurisdiction of
this court. Further appeal to the president and council at Surat was discouraged
except in rare cases to legislate and to exercise judicial authority in the island of
Bombay. It was further stated that such laws should be consonant to reason and
not repugnant or contrary to the laws of England and they were also required to
be as near may be agreeable to the laws of England. The system of courts and
procedure was to be similar to that established and used in England. The Charter
of 1668 resulted in a transition of the company from a trading association to a
territorial sovereign invested with powers of civil and military government.

The president of Surat, Sir George Oxenden, received the Company’s

order in September 1668 to visit the Island of Bombay and establish the
executive government under a Deputy Governor and Council. Oxenden visited
Bombay in January 1669. He died in July 1669. The next Governor of Surat –
Gerald Aungier, made same reforms in the Island of Bombay in 1670

JUDICIAL REFORMS OF 1670 –

As per the reforms of 167 the Portuguese Laws and Customs were allowed to
continue the Island of Bombay was divided into two divisions. One division
consisted of Bombay, Mazgaon and Girgaon. The other comprised of Mahim,
Parel, Sion and Worli. A separate court of judicature was established for each
division at Bombay and Mahim. Each court consisted of Five Judges. The
customs officer of each division, an Englishman, was empowered to preside
over the respective court. Three judges formed the quorum of the court. Three
Judges formed the quorum of the Court. As it was not possible for an
Englishman to have adequate knowledge of Indian Laws, some Indians were
also appointed Judges to assist him in the Court of each division. The Courts
were authorized to hear, try and determines cases of small thefts and all civil
actions up to 200 xeraphins (it was a Portuguese coin 20 xeraphins were equal
to nearly Rs.150) in value. An appeal from the court of each division was
allowed to the court of Deputy Governor and Council. Apart from the appellate
jurisdiction the court of Deputy Governor and Council also had original
Jurisdiction in important Felonies which were to be tried with the help of jury
and the Laws of the Company. Englishman was under the jurisdiction of this
Court. Further appeal to the President and Council at Surat was discourages
except in rare case.

NEW JUDICIAL PLAN OF 1672-

It was realized within the next 2 years that the judicial system of 1670 was
defective in various respects. Augier the Governor was himself not satisfied
with the working of the Courts. The Judges of the Superior and Inferior Courts
had no knowledge even of the elementary principles of law, they were
Merchants. The judicial and executive powers were exercised by the same
person. As consequences, the abuse of power created various new problems.
Order to remove these defects a new plan was prepared in 1672 for the
administration of Justice in Bombay.

According to the new plan the government issued a proclamation on 1St August
1672 declaring the introduction of English Law into Bombay. The Portuguese
Laws and Customs were totally abolished under the new plan. The Judicial
Machinery was again organized. A new central court known as the Court of
Judicature was established. The Court of Judicature was empowered to exercise
its Jurisdiction over all Civil a and Criminal and Testamentary cases. George
Wilcox appointed its Judge assisted by other Justice. The Court sat once a week
to try civil cases with the help of jury. The court charges a fe of five percent of
valuation of the suit from the litigants.

The judges were prohibited from carrying on private trade or business and
instead he was granted a salary of Rs. 2000 per year to meet his expenses. An
appeal from the court of Judicature was allowed to the Deputy General and
Council. Juries were duty employed and paid. Attorneys were allowed to
practice. English procedure including arrest and imprisonment was followed. As
far as possible the English substantive law including statue law was made
applicable. In framing the new scheme Aungier was primarily concerned with
the speedy and impartial administration of Justice.

Justice of the Peace was appointed to administer criminal justice. For this
purpose Bombay was divided into four divisions, namely, Bombay, Mahim,
Mazagaon and Sion.in each division a justice of the Peace, an Englishmen was
appointed. They acted as committing Magistrate to arrest the accused and to
examine the witness. The record was then placed before the Court of Judicature
which met once a month to decide criminal cases with the assistance of the
Justice of Peace, who acted as assessors in the Court.

The scheme of 1672 also created a Court of Conscience to decide petty civil
cases. Once a week the court dealt summarily with civil cases under twenty
Xeraphins. The decision of the Court was final and no further appeal was
allowed. No Court-Fee was charged from poor persons and, as such the Court
Become famous as, “Poonam’s Court”. George Wilcox, Judge of the Court of
Judicature, also presided over the Court of Conscience which met only once a
week to deal with petty civil cases.

George Wilcos, the first Judge of the Court of Judicature died in 1674. James
Adams was chosen to succeed Judge Wilcox but he was not well – versed in
law. After a few months in 1675, his assistant Niccolls was appointed judge in
his place. In 1677 Niccolls was suspended and later dismissed by the Council in
various charges. Gary succeeded Niccolls as Judge and remained in the office
up to 1683. During this tenure, the salary and rank of a Judge was reduced and
the Council became superior in power and position.

Keignwin’s rebellion, which began in December 1683, and continued up to

November 1684, gave a death – blow to Aungie’s judicial system in the Island
of Bombay.

Admiralty Court (1684 to 1690) –

As stated above, the development of Courts at Bombay was interrupted due to

the Keignwin’s rebellion. After the rebellion was suppressed, efforts were made
to set-up a regular judicial system at Bombay. The Company found its authority
to establish courts under the earlier Charter of 1683 granted by Charles II. The
Charter provided for the establishment of Courts at such places as the Company
might direct for Maritime causes of all kinds, including all cases of Trespasses,
Injuries and Wrongs done or committed upon high seas or in Bombay or its
adjacent territory, and each Court was to be held by a learned judge in civil law
assisted by two persons chosen by the company. Such Courts were required to
decide cases according to the rules of equity and good conscience and the laws
and customs of merchants. Accordingly, an Admiralty Court was established at
Bombay in 1684. Dr. St. John was also authorized to act as Chief Justice of the
Court of Judicature. The Court of Judicature was again created, as the authority
of the Admiralty Court was not sufficient to cover all other civil business.

John Child, Governor of Bombay at Surat, was not in favour of accepting the
theory of judicial independence which was adopted by dr. St. John in his
judicial decisions. It gave rise to conflicts between the Governor and the Chief
Justice. Dr. St. John’s judicial independence was interrupted by the Governor
John Child as insubordination towards himself. In 1685 the powers of Dr. St.
John to act as Chief Justice of the Court of Judicature were withdrawn by the
Governor. Vux, a member of the Bombay Council was appointed as judge to
preside over this Court, in place of Dr. St. John. These steps further developed
the existing conflict between the Governor and the Chief Justice. Dr. St. John
strongly criticized the transferring of his power to Vaux, a new judge, who
according to him was ignorant of civil laws. In due course the Governor and Dr.
St. John’s dismissal, Sir J. Wyborne, Deputy Governor of Bombay, was
appointed as the Judge of the Admiralty Court. In 1688 Vaux succeeded Sir J.
Wyborne and remained in the office up to 1690.

In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the
judicial system of Bombay came to an end. From 1690 to 1718, in fact, the
machinery to administer justice was almost paralyzed in Bombay. Thus the
period from 1690 to 1718 is a dark period in Bombay’s Legal History.

Court of judicature –

A new period in the Judicial history of Bombay began with the revival and
inauguration of a court of judicature on 25th March,1718 by Governor Charls
Boone. It was established by the order of the Governor and Council which was
later on approved by the Company authorities. The court of Judicature of 1718
consisted of ten Judges in all. It was specially provided that the Chief Justice
and Five Judges will be Englishman. The remaining Four were required to be
Indian representing Four different communities, namely, Hindus,
Mohammedans, Portuguese – Christians and Parsi. All English Judges were also
members of the Governor’s Council and enjoyed status superior to Indian
Judges. Three English judges formed the quorum of the court. The Court met
once a week. Indian Judges, who were also known as “Black Justice” were
included mainly to increase the efficiency of the Court and their role was mostly
that of assessors or assistants of the English judges. They do not appear to have
enjoyed equal status with English judges.
The Court of 1718 was given wide powers. It exercised jurisdiction over all
civil and criminal cases according to law, equity and good conscience. It was
also guided by the rules and ordinance issued by the Company from time to
time. It was necessary for the Court to give due consideration to the customs
and usages of the Indians. Apart from its jurisdiction over probate and
administrative matters, it was further authorized to act as a Registration House
for the registry of all sales concerning houses, lands and tenements.

An appeal from the decision of the Court of Judicature was allowed to the Court
of Governor and Council in cases where the amount involved was Rs. 100 or
more. A notice to file an appeal was to given within Forty-Eight hours after the
judgment was delivers to the Chief Justice of the Court of Judicature. Moderate
fees were prescribed by the Court for different purposes. For filing an appeal, a
fee of Rs. 5 was to be paid.