The Evolution of Judiciary During British Times

In pre-colonial India, the judicial system neither had proper procedures nor a proper organisation of law courts. Rajas and Badshahs were considered the fountainhead of justice, and the process of dispensing justice could be arbitrary.

Beginning of common law system, based on recorded judicial precedents, can be traced to establishment of Mayor’s courts in Madras, Bombay, and Calcutta in 1726 by the East India Company.

  • EIC had been authorised to execute judicial powers in India by the Charter of 1662. The Charter of 1726 had empowered EIC to establish Mayor’s courts (Courts of the King of England) in Calcutta, Bombay, and Madras, however, it was silent over Company’s jurisdiction over natives.
  • With the company’s transformation from a trading company into a ruling power, new elements of the judicial system replaced the existing Mughal legal system.

Reforms under Warren Hastings

  • Hastings brought natives under EIC’s jurisdiction through its provisions for establishing civil & criminal courts in each district known as mofussil courts.
  • Established District Diwani Adalat to try civil disputes. These Adalats were placed under the collector and had Hindu law applicable to Hindus and Muslim law to Muslims.
  • District Faujdari Adalats were set up to try criminal disputes and placed under Indian officers, assisted by Qazis and Muftis. These adalats were also under the general supervision of the collector.
  • Under Regulating Act of 1773, a Supreme Court was established at Calcutta which competed to try all British subjects within Calcutta and subordinate factories including Indians and Europeans.

Reforms under Cornwallis (1786-93)

  • District Faujdari Courts were abolished and, instead, Circuit Courts were established at Calcutta, Dacca, Murshidabad and Patna. These circuit courts had European judges and were to act as a court of appeal for both civil and criminal cases
  • Sadar Nizamat Adalat was shifted to Calcutta and was put under the Governor General and members of the supreme council assisted by the chief Qazi and chief mufti.
  • District Diwani Adalat was newly designated as the district, city or the Zila court and placed under a district judge.
  • A gradation of civil courts was established.
    • Mufti’s court under Indian officers.
    • Registrar’s court under a district judge
    • Four circuit courts as provincial courts of appeal
    • Sadar Diwani Adalat at Calcutta and
    • King-in-Council for appeal of 5000 and above
  • Cornwallis code was laid out:
    • There was a separation of revenue and justice administration.
    • European subjects were also brought under jurisdiction.
    • Government officials were answerable to the civil courts for actions done in their official capacity.
    • The principle of sovereignty of law was established.

Reforms under William Bentick

  • Under William Bentinck, Persian was replaced by English in the Supreme Court.
  • He abolished the four circuit courts, and their functions were transferred to collectors under the supervision of the commissioner of revenue and circuit.
  • Sadr Diwani Adalat and Sadar Nizamat Adalat were set up at Allahabad for the convenience of the people of upper provinces.
  • In 1833, Law Commission under Macaulay led to the codification of Indian laws and as a result, Civil Procedure Code (1859), Indian Penal Code (1860) and Criminal Procedure Code (1861) were prepared.

Later developments

  • In 1860, it was provided that Europeans can claim no special privileges except in criminal cases, and no judge of Indian origin could try them.
  • In 1865, Supreme court and Sadar Adalats were merged into three High Courts at Calcutta, Bombay and Madras.
  • Under GOI Act 1935, a Federal Court was established.

Assessment of British judicial system

Positive aspects

  • Rule of law was established.
  • Codified laws replaced the religious and personal laws of the rulers.
  • Government servants were made answerable to the civil courts.

Negative aspects

  • Judicial system became increasingly complicated and expensive. The rich could manipulate the system.
  • Ample scope for false evidence, deceit and chicanery.
  • Dragged-out litigation meant delayed justice.
  • Courts became overburdened as litigation increased.
  • Often the European judges were not familiar with the Indian usage and traditions.
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