Racial discrimination in the ancient India

Sai Manoj Reddy, Student of Law, VIT Law School, Chennai

History (Ancient India)

The least challenged racism remains that of Indian Caste system. Indo-Aryans started the Caste system in India after they conquered it, to preserve their racial purity in India. Now the Caste system is a part of Hinduism. The Hindu religious name for the Caste system is Verna, which literally means color system. Darker-skinned people, Dravidians, who were defeated by Aryans, became outcaste or Untouchables of the Verna system.

The following list gives a broad idea of what untouchability means:

  • Denial or restriction of access to public facilities, such as well, schools, roads, post offices, and courts.
  • Denial or restriction of access to temples where their presence might pollute the deity as well as the higher caste worshippers, and from rest houses, tanks, and shrines connected to temples. Untouchables… are forbidden to learn the Vedas (the earliest and most sacred books of orthodox Hinduism).
  • Exclusion from any honourable, and most profitable, employment and relegation to dirty or menial occupations.
  • Denial of access to services such as those provided by barbers, laundrymen, restaurants, shops, and theatres or requiring the use of separate utensils and facilities within such places.
  • Restrictions on style of life, especially in the use of goods indicating comfort or luxury. Riding on horseback, use of bicycles, umbrellas, footwear, the wearing of gold and silver ornaments, the use of palanquins to carry bridegrooms.
  • Restrictions on movement. Untouchables might not be allowed on roads and streets within prescribed distance of the houses or persons of higher castes.

According to the Indian census of 1980, there were 200 million “Untouchables” of the lowest Castes. These 200 to 300 Castes are subjected to very inhuman treatment based on practices advocated in the Hindu religious manual Manu Smriti. The life, property and honor of Untouchables still remain threatened by the higher Castes.

Pollution and purification are key concepts in the Caste system. They are based on Hindu beliefs that each Caste group can maintain its status by restricting contact with the “polluting” effects of the lower Castes and by regulating its contact with objects thought to be inherently impure. Caste members customarily marry only members of their own Caste.

There are about 3,000 Castes and more than 25,000 sub-Castes in India, some with only several hundred members and others with millions. The tragedy is that with the rise of Hindu religious nationalism nowadays, the Caste system is regaining its power, shaken a bit by modernization. Most wealth and power is by and large in the hands of the top three percent of Castes in India.”

History (during British rule)

The centralised administration of the British Government and modern methods of rapid communication like the railways fostered a sense of Indian unity. Some of the evils of British rule to the contemporary Indians appeared as a blessing in disguise in the long run. One such evil was the naked racial arrogance of the British. Racial discrimination among Indians which was unmistakably present in the Cornwallis code at the end of the 18th century rapidly crystallised in the 19th century.

 Racial doctrines openly preached the predestined superiority of the whites and the permanent subjugation of the non-whites like Indians to the white supremacy. As a result not only did the British enjoy numerous exemptions and privileges but also they were so far brutalised as to insult, assault and even murder Indians with impunity.

This naturally moved self-respecting Indians to challenge the odious alien rule. Secondly, in 1826, a Jury act was passed which introduced religious discrimination in the law courts. Under it Hindus and Muslims could be tried by European or Indian Christians, but no Christians whether European or Indian, could be tried by Hindu or Muslim jurors.

Present trend of racial discrimination in India

As we have seen what racism is in the past, now in India racism is still there in the present days. There is discrimination against north-eastern Indians and even Africans who are residing in India. Even we have discrimination regarding caste and religion in the past which was less now. Some of the best examples are what we see in our daily life, in the same Hindu committee people are divided into various types based on their occupation mostly. That is fine if it is just division but the concept behind this division is based on the occupation the dignity of people depends in this division. There are still a lot of areas where the people were discriminated based on castes.

Incidents on the people of North eastern states

 As many as 54 per cent people from the northeast feel that discrimination is a reality in the national capital while 74 per cent felt that Delhi is the “most unsafe” place in terms of ethnic discrimination, a survey report has revealed. The survey, which was conducted to understand the perception regarding discrimination against people from Northeast India residing in Delhi and NCR, also said that only four per cent of the victims of discrimination reported the matter to the police.”54 per cent persons feel that discrimination is a reality.

The highest number of 67 per cent respondents said that they were victims of ethnic/racial discrimination followed by only four per cent saying that they faced gender related discrimination while three per cent said they were discriminated on basis of their religion,” said the report which was released today by NHRC Chairperson Justice K G Balakrishnan. However, there was a silver lining in the report for the national capital as 47 per cent respondents were hopeful that the city can be free from discrimination in the future.

The survey was carried out by Reach Out Foundation with the help of Policy Research during which 1000 respondents were interviewed in 30 different locations in Delhi and NCR. “The situation in Delhi regarding racial/ethnic discrimination is most worrying at least for the Northeast people. 74 per cent respondents said that Delhi is the most unsafe place in terms of ethnic discrimination. Only 8 per cent felt that it is the least worrying place regarding ethnic discrimination while 18 per cent did not express their opinion about it,” the report revealed.

Speaking at the event, Balakrishnan said that the report will throw light at the various aspects and help us to find solution and the administrators, police should study this report and they should frame their policies…our economic reforms should be moulded in such a way that this discrimination should end.” “Policies should be made in such a way that those who are not getting life opportunities, should be provided life opportunities. This should be the policy of the state, then only discrimination will end,” Balakrishnan said.

According to the report, majority of respondents said discrimination is experienced either at a restaurant or sporting or public places (27 per cent). These locations were followed by 24 per cent at the educational institutions and 23 per cent during buying or renting of house. 13 per cent of them said that they faced discrimination at their workplace and seven per cent people informed that even police did not treat them equally.

The worrying thing revealed in the report is that only four per cent of the victims of discrimination reported it to the police while, 24 per cent shared their experience with a family member or a friend. 12 per cent did not say anything to anyone. At least 40 per cent people did not respond to the question whether they took any measures in such a scenario or not. “63 per cent of the respondent felt that the main reason for the discrimination against them was their ethnic origin while 64 per cent said that the reason behind discrimination is the lack of understanding and awareness while 20 per cent felt that lack of interaction is the reason,” the report said ((Article in The economic times, December 6, 2014)).

Incidents relating to Africans

Apart from the fact that racism is hateful and ugly, homegrown racists would do well to remember that students like Aiyesimoju, who travel to India for higher education at private universities, pay twice the amount of tuition fee as an Indian student does. “African students in Jalandhar have also resulted in the proliferation of the Paying Guest business here,” says Aman Mittal, deputy director of LPU. Unfortunately, all this hasn’t translated into a pleasant life for Africans here and a few express cynicisms about their Indian experience. “In this country, even Kashmiris, who are from the same nation, are not spared discrimination. Here, I see racism everywhere,” says an African student. Given the recent unsavoury incidents, he is probably right.

Africans studying in Punjab feel that they are definitely discriminated against and that racial hatred and racist stereotypes persist. In the recent past, there have been two incidents of violence involving African students in the state. In both the cases, the Africans involved have alleged discrimination at the hands of the police. In April 2012, Yannick Ntibateganya, a Burundi national who was studying at Jalandhar’s Lovely Professional University (LPU) was brutally beaten by nine locals, most of whom belonged to affluent families.

Investigations into the incident only started two months later, after Yannick’s father Nestor Ntibateganya took up the matter with the chief minister of the state. The murderous attack left Yannick with severe head injuries and he remained in coma for a couple of years before he was airlifted to Burundi in June this year. Yannick succumbed to his injuries a month later. Seven of the accused men were convicted and sentenced to 10 years rigorous imprisonment by a Jalandhar court for attempt to murder.

In another incident that took place in June 2013, the local police booked as many as 21 African students following a brawl with a Jalandhar-based resident. In the FIR, the accused were referred to as ‘kale’ (blacks). A human rights body from the Democratic Republic of Congo has since taken up cudgels against the police for the alleged use of the derogatory word ‘kale’ in an FIR.

“There is a sense of fear among Africans. It has become difficult to even talk freely without the fear that we may become targets of racial discrimination,” a majority of African students told this reporter. “Kale (Blacks) and Negros — this is how students from African countries are referred to” said a student. Racial prejudice is evident in the areas where they live. Contrary to evidence from shopkeepers in these localities, many residents still insist that African students “are a nuisance”.

K Kwasi, 39, has been married for three years but says he won’t start a family till he can return to the US. “I don’t want my kids to face the discrimination I face in India, especially in the metros,” he says. “Everyone here thinks I’m a drug peddler, especially in Mumbai. I cannot drive my car without being stopped by the police and questioned. Even at parties, I am stopped by other guests and asked if I sell drugs.”

In 2013, Wandoh Timothy (44), an Ivory Coast national, was attacked by a mob that kept calling him “Negro” and “African”. Ironically, Timothy holds a Person of Indian Origin (PIO) card because he is married to an Indian. On the recent attack on African students at a Delhi Metro station, Timothy says: “I don’t know why but people’s attitudes towards the so-called ‘outsiders’ has changed a lot in the last few years.”After his attack, Timothy says he has become more wary but bears no grudges. “As a good Christian, I have forgiven the people who attacked me. I have withdrawn my complaint. I think after this gesture, they will never again attack somebody for the colour of their skin,” he says.

CristelleKouassi, 21, from Ghana, however, feels that the city is yet to learn its lessons. “Recently, my friend and I were not allowed to enter a pub. The bouncers told us the place was closed but they allowed others to enter,” she claims. Her friend OsseyanChiakafouRine (19) from Ivory Coast says she is routinely heckled by men who call her “Blacky”. “I am used to men coming up and asking ‘how much?’” she says.

These are only few incidents which are known to all because they were published in the newspapers. But still there are many more incidents going on in India regarding the racial discrimination.

A judgement by madras high court

Our judicial system has a very different view on the racism and its impact on human life. In a recent case, the Madras High Court in Madurai said in a judgment that a man calling his wife ‘dark colour’ cannot be convicted of instigating his wife to commit suicide. According to the Justice M Sathyanarayanan of the High Court’s Madurai Bench, a man criticizing his wife for being dark is not harassment.

Allowing a petition filed by Paramasivam against a lower court order, Justice M Sathyanarayanan of the High Court’s Madurai Bench, had said, “Criticizing the wife for being dark in colour does not amount to harassment or torture, and it cannot be said that the husband instigated the wife to commit suicide.”

After being convicted and sentenced for seven years of imprisonment by a lower court in Tirunelveli District, in Tamil Nadu’s deep south, Paramasivam had then filed an appeal against the conviction and sentence in the High Court. He was also sentenced to three years imprisonment under the Dowry Harassment Act on October 27, 2006.

Conclusion

Problems will be solved only when people start recognizing differences and become tolerant. Recognition is vital for human existence, which otherwise leads to social exclusion of any group/community of people. When the message will be sent to the masses about various unknown differences that already exists in the country, people will start realizing the beauty of a diverse society.

A great initiative to end this disjuncture of knowledge would be by introducing more information about the North Eastern region or the southern region, or any other regions which have been ignored since years, into the curriculum of state education boards and other central educational boards, especially NCERT books. Let us not only confine Indian history to the Mughal’s history.

And the government (both state and center) should be more inclusive while coming up and implementing policies which do not create a sense of hatred and alienation of the people. On a closing note, I remember Mandela’s words “education is the most powerful weapon which you can use to change the world” and hence, I say, I still have faith in the human race.

Growth of justice, equity and good conscience

Mahima Gherani, Student of Law, VIT Law School, Chennai

The origins of imports of common law into India have been seen from the early 1661 onwards. From the early charters, which established English Courts in India wanted the judges to act according to ‘justice, equity and good conscience’ in deciding cases when no source of law was identifiable ((Environmental Jurisprudence in India, By C. M. Abraham)). The phrase “justice, equity, and good conscience” had its origins in Roman canonical laws it was understood by English jurists of the sixteenth century. In the form in which it was introduced into England at that time, it was “an appeal to sources of law other than English common and statute law, namely, “an appeal to fundamental laws, recognized universally.”

Justice

Justice is not merely right determination and adjudication of disputes and enforcement of Law, but is so comprehensive in its meaning and import that it takes within its ambit the whole of political, social, juristic and moral idealism. The word justice comes from its Latin root ‘Jus’ meaning ‘right’. From the Vedic period onward, the perennial attitude of Indian culture has been that justice and righteousness among men are microcosmic reflections of the natural order and harmony of the macrocosmic universe. The cosmos is instinct with an inherent structure and functional pattern in which men at their best willingly participate. Justice, then, in the Indian context, is a human expression of a wider universal principle of nature and if man was entirely true to nature; his actions would be spontaneously just ((Available at http://buddhism.lib.ntu.edu.tw/FULLTEXT/JR-JOCP/jc26833.htm accessed 29th April, 2015)). Justice, in the sense of a distributive equity, is experienced by men in three major guises: as moral justice, social justice and legal justice. Each of these forms of justice is viewed as a particularization of the general principle of the universe seen as a total organism. Nature is guided by principles which become translated into ethical terms in the individual and social lives of men. Of course, human life itself is seen as part of this natural process, having a bearing on the functioning of the whole, but not by any means dominating it. These introductory statements can now be amplified through an examination of the concept and role of justice as it applies in the three areas of individual morality, society and the state, and the functions of law.

It has its literal meaning as ‘binding’ or fitting or tying together of things and qualities harmoniously in human life. The administration of justice started in the early days as a choice of peaceful mediation offered for the voluntary acceptance of parties. The concept of justice differs in every culture. An early theory of justice was set out by the Ancient Greek philosopher Plato in his work The Republic. Throughout history various theories have been established. Advocates of divine command theory argue that justice issues from God. Theorists like John Locke argued on the theory of natural law, utilitarian thinkers like John Stuart Mill argued that justice is what has its best consequence. John Rawls who gave the theory of distributive justice used a social contract agreement to show that justice is a form of fairness. According to thinkers in the social contract tradition, justice is derived from the mutual agreement of everyone concerned; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. According to the egalitarian, justice can exist only within the parameters of equality. Jews, Muslims and Christians traditionally believe that justice is a present, real, right, and, specifically, governing concept along with mercy, and that justice is ultimately derived from and held by God. According to the Bible, such institutions as the Mosaic Law were created by God to require the Israelites to live by and apply his standards of justice. This is how the concept of justice evolved over time with different views one influencing another.

Equity

In the ordinary sense, equity is synonyms with natural justice. Initially this system was inspired by the ideas of natural justice but in today’s world equity is no more or no less than the common law. Maine defined it as ‘any body of rules existing by the side of original civil law, founded on principals and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principals ((Maine page 34)). Equity was important in the development of English law because it resolved some of the defects of the common law, which might otherwise have led to a loss of public confidence in the legal system. But how did this concept actually evolve?  Equity arises out of the processes of law applying, and is changed by those who are engaged in this task.

In the middle ages, the courts of common law failed to give redress in certain type of cases where it was most needed. During that era, the King was regarded as the “fountain of justice” and would provide extraordinary relief with the help of the Chancellor set up by the special courts i.e. Courts of Chancery, to deal with petitions by various disappointed litigants. With the passage of time the rules of the Courts of Chancery hardened into law and became a regular part of law of land.

The most important branch is the law of trusts, but remedies such as specific performance, Account of profits, Rescission, Declaratory relief, Rectification, Estoppels, Certain proprietary remedies, such as constructive trusts or tracing, Subrogation and injunction are also used. Equity came to prevail when there is a question between the rules of common law and the rules of equity, which was a topic of debate and was subject to huge controversy. Equity had come not to destroy the law, but to fulfill it.

Every jot and every title of the law was to be obeyed, but when all this had been done something might yet be needful, something that equity requires ((Maitland Equity page 17)). The most drastic remedy was restitution integrum by which a completed transaction at law could be erased and the parties allowed to begin afresh. The creative function of equity was most marked during the Roman and English period.

The Romans granted their emperors broad prerogatives in dispensing from the law. Whenever the emperor felt that the application of a statutory rule would lead to an inadequate result, he had the power to set aside the rule for this particular case. The same kind of power is exercised by the Pope under cannon law. In Anglo-American equity jurisprudence, the rigid attitude of equity did not prevail. A court in a proceeding governed by equity, may issue a conditional decree requiring the plaintiff to do justice to the defendant, as a prerequisite for obtaining the relief requested by him.

Equity has recognized that there may be varying shades of grey in the relative positions of the parties, that both of them may be partly right and partly wrong, and that therefore a compromise or mutual adjustment may be preferable to an either-or solution ((Handbook on the Principals on Equity Page 55-56, 387-393)). Equity did not intervene when, according to equitable principles, no injustice resulted in adopting the solution imposed by law. Where two or more parties have an interest in the same property but their respective interests have not been quantified, equity as a last resort may divide the interest equally.

Equity imputes an intention to fulfill an obligation for example; the principle here is based on the premise that if a party is under an obligation to perform an act and he performs an alternative but similar act, equity assumes that the second act was done with the intention of fulfilling the obligation. “Most of the equitable principles and rules have, in India, been embodied in the statute law and has been made applicable to the extent of the provisions made therein. The provisions of equity in Indian statute books might have their source in common law or in equity or in an adjustment between the two, is immaterial.

Statutory recognitions of the principles of equity are found in The Indian Contract Act, 1872, The Specific Relief Act, 1877, The Indian Trust act, 1882, The Transfer of Property Act, 1882 and The Indian Succession Act, 1925. Even after all this, yet there are so many rules of equity that are neither been followed or adopted in India.

This system went on until 1875, when as a result of the Judicature Act 1973 was passed which abolished the old courts of common law and the Court of Chancery. In their place a single Supreme Court of Judicature was established who had supreme power in all the matters of law and equity.

Good Conscience

“The knowledge of our acts, states, or characters, as right or wrong, the faculty, power, or principal which decides on the lawfulness or unlawfulness of our actions and affections, and approves or condemns them; the moral faculty; the moral sense”. ((Available at www.worldslastchance.com/christian-growth/a-good-conscience.html accessed on 29th April 2015))The conscience originally involves our ability to discriminate between two options. The conscience then, assumed the role of judge, administering judgment through guilt and the specter of punishment.

English humanist lawyers in the 16th and 17th centuries interpreted conscience as a collection of universal principles given to man by god at creation to be applied by reason; this gradually reforming the medieval Roman Law-based system with forms of action, written pleadings, and use of juries and patterns of litigation. Along with law, which is the objective of morality, conscience helps a person determine whether one is doing the right thing or wrong. Greek and Roman philosophy also engaged understandings of conscience, but usually in the context of a guilty one – of feelings of regret for bad actions done.

This negative understanding of conscience typical of Greco-Roman philosophy became more positively construed in the New Testament with St. Paul and the fathers of the early Church. The education of what was conscience is has evolved from the teachings of the Church, the responsiveness of indwelling the Holy Spirit and charity. St. Paul constantly reiterates that he has a good conscience, and encourages others to act so that they will too. St. Augustine also recommends seeking a good conscience.

The role played by the martyrs of the early Church should also not be underestimated. These witnesses to conscience and conscientious objection to state religious power set a firm directionality in Christian teaching that conscience should never be violated, even unto death. The Reformation period was a trying time for conscience rights in Europe as political and religious groups vied for power.

More recently, the Church and its theologians have continued to promote conscience rights. God speaking to us, Moral teachings of the church and the scriptures, behaviour of our near and dear ones and our own behaviour are the primary sources of developing good conscience.

Influence of English law in Indian legal system

Lohitashwa Pratap Singh, Student of Law, VIT Law School, Chennai

In India the concept and principles and rules of the English law initially spread over a few provinces and gradually over all the states in India. It is well known that British came to India to advance themselves, to establish themselves as traders and acquired power and having acquired power, declared themselves as rulers of the whole country. There were no special codified laws formed for the native people thus instruction were given to English administrators and judges to decide cases according to justice, equity and good conscience, for which no rule was clearly laid down in the Acts of Parliament. According to Rankin “the influence of the common law in India is due not so much to a reception, though that has played no inconsiderable part, as to a process of codification carried out on the grand scale … But in fact the English Law in India like the Roman Law in Medieval Europe enjoyed a persuasive authority as being an embodiment of written reason, and impressed its own character on a formally independent jurisprudence. The manner in which the English Law took place was altered but its extend was in no way diminished when in the 19th century the law was codified in India.

The common law of England actually means the unwritten legal doctrines which includes English customs and traditions developed by the English courts in the past centuries. It does not include the statute law of England. The Common law was a critical part of the British system of administration of justice. The basic idea under the British rule in India was that, when Indian laws were not codified to impart justice on the basic of equity, fairness, justice and the world is used synonymously for natural justice. In the beginning of the Adalat system in India, application of the principles of justice and fair play mainly depend on the discretion of a judge and the discretion of one judge in those times differed from the discretion of another judge. This resulted in confusion, uncertainty and injustice.

The common law system – a system of law based on recorded judicial precedents- came to India with the British East India Company.  The company was granted charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial functions of the company expanded substantially after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In the process, the company slowly replaced the existing Mughal legal system in those parts.

Following the First War of Independence in 1857, the control of company territories in India passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal system. Supreme courts were established replacing the existing mayoral courts. These courts were converted to the first High Courts through letters of patents authorized by the Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower courts and enrolment of law practitioners were deputed to the respective high courts.

During the Raj, the Privy Council acted as the highest court of appeal. Cases before the council were adjudicated by the law lords of the House of Lords. The state sued and was sued in the name of the British sovereign in her capacity as Empress of India.

During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too followed suit, though they mostly continued their earlier role as client representatives. The doors of the newly created Supreme Courts were barred to Indian practitioners as right of audience was limited to members of English, Irish and Scottish professional bodies. Subsequently rules and statutes culminating in the Legal Practitioners Act of 1846 were passed which opened up the profession regardless of nationality or religion.

Coding of law also began in earnest with the forming of the first Law Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872)

During the early period one of the main objective of the East India Company was to make a little alteration as possible in the existing state of the Mohammedan Law and system of criminal courts. The Mohammedan Law, therefore was administered by the criminal courts in India for long. As soon as the Company gained some strength it realised the necessity to make important changes in certain matters of Mohammedan Law of crimes as according to them no civilised government would like to tolerate them. As Ibert said “It was impossible to enforce the law of retaliation for murder, of strong for sexual immorality or of mutilation for theft or to recognise the incapacity of unbelievers to give evidence in cases affecting Mohammedans. Warren Hasting and Lord Cornwallis frequently criticised the provisions of the Mohammedan Criminal Law and whenever they got any opportunity they introduced changes on it.

In Harrington’s Analysis of the Bengal Regulations, giving a true picture of the Mohammedan Criminal Law he states that it became like a patchwork quilt. Regulation VI of 18 of 1832 marked the end the Mohammedan Criminal Law was not completely set aside till the penal code of 1860 and the Criminal procedure code of 1861 were enacted and came into operation. The process of superseding native law by English Law, so far as the administration of criminal justice was concerned was completed after the enactment of the Indian Evidence Act in 1872.

The Charter of Act of 1833 introduced important changes in the constitution of East India Company and the system of Indian administration. It established, for the first time in the history of British India, a single legislation for all the presidency Towns as well as the Mofussils and appointed the First Indian Law Commission. By appointing the first law commission, the British Parliament tried to achieve in the words of Lord Macaulay “Uniformity where it was possible, diversity where it was necessary but in all cases certainty”.

The First law commission, headed by Lord Macaulay, submitted many reports on various laws. There reports were based on a detailed study primarily of the English Law. The English Law, to the extend it suited Indian Conditions, usages and customs, was thus systematically imported into India. The codification of Indian Law was a systematic import of English Law into India through the four Law Commissions. Though the First Indian Law commission under the Chairmanship of Lord Macaulay submitted its Report on penal code, it was not until 1860, that the Indian Penal Code was placed on the Indian statute book.

Apart from English Law, the French Code was of great help as a model and on many questions it afforded valuable suggestions which were utilised by the Law Commission in framing the Indian Penal Code. The Code of Civil Procedure was passed in 1859 and the Criminal Procedure Code was passed in 1861. The law of procedure was supplemented by the Evidence Act, the limitation Act and by the Specific Relief Act., which stands on the broader land of substantive and adjective law.

In India codification has been brought about by the pressure of practical necessity. In India it became necessary to draw up, for the guidance of untrained judges and Magistrates, a set of rules which they could easily understand and which were adapted to the circumstances of the country. But since the framers have been English, it is a natural corollary that English notions must have been imported as has been.At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted.

It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.

The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country. It is extensive and aims to be sensitive. The Constitution turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. The Constitution explicitly and through judicial interpretation seeks to empower the weakest members of the society.India has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions.

The Indian legal system’s move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system.From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.

We own the English common law for the fundamental principles of our public law the rule of law, individual freedom, and limited powers of the government. In the sphere of administration of justice, the system of trial, the legal profession, the independence of judiciary, system of judicial precedents and justice according to law, are all based on the principles of English law. The doctrine of precedents which is deep rooted in English Law, was first introduced in Indian in 1726, when the Mayor’s Court were established in India.

Since then the judicial precedents have played a very important role in shaping Indian law. Section 212 of the Government of India Act also provided that the law lay down by the Privy Council would be binding on all courts in India. It also followed that every court was absolutely bound by the decisions of the superior courts. Article 141 of the Indian Constitution, 1950, provides “the law declared by the Supreme Court shall be binding on all courts within the territory of India”.

This is based on English principles, though by this provision there is some departure from the English practice. In England, the house of Lords is bound by its own decision but in India, the Supreme Court is not bound by its own decisions. The Supreme Court of India, the highest judicial organ in India is free to change the law which is laid down in an earlier case.

Concluding, it can be stated that the British Empire has left an imperishable contribution to the enrichment of India’s Legal heritage. Apart from this but equally of importance is the fact that with the ending of British Raj in India the time is ripe enough for us to make a beginning of new understanding of India’s national peculiarities in the legal sphere.A study of India’s ancient history will reveal the fact that what we now call “the unique principles of English common law” was in fact originated in India.

During Mediaeval and British periods, we were made to forget our own “ancient Hindu period” which was our glorious past in various respects. The principles of Indian philosophy, traditions, social and legal order, which formed the backbone of our glorious past, can be correlated to meet the growing problems and new conditions of India today. Let us not forget India still remains her intellectual treasure despite the influence of English Common law.

BIBLIOGRAPHY

  1. Landmarks in Indian Legal and Constitutional History by V.D Kulshreshtha
  2. M P Jain Indian Constitution.
  3. M P Jain Outline of Indian Legal and Constitutional History.
  4. India: A history by John Keay
  5. The Last Mughal: The Fall of a Dynasty: Delhi, 1857 by William Dalrymple

Growth of criminal law in India

Mahima Gherani, Student of Law, VIT Law School, Chennai

The present criminal system of India was not a sudden creation. It has been evolved as the result of slow and gradual process and bears the imprint of the different period of Indian history.

In this article, we can understand how criminal law developed over years in India in a systematic format starting from the Ancient Hindu Criminal Law and then proceeding with the Early Muslim Criminal Law, Reforms by English Administrators, Fall of Muslim Law, The First Indian Law Commission, The Indian Penal Code and finally The Criminal Procedure Code which was repealed many times to draft an efficient statute that could regulate the criminal system of law in India.

Before the Muslim law developed in India, the penal law prevailing in India was the Hindu Criminal Law, which was systematic and well defined. Ancient Smriti writers propounded four methods of punishment, namely, by gentle admonition, by severe reproof, by fine and by corporal punishment and declare declared that these punishments shall be inflicted separately according to the nature of the offence. These punishments serve four main purposes namely, to meet the urge of the person affected, for revenge or retaliation, as deterrent and preventive measures and for reformation or redemption of the evil doer ((P.V.Kane, History of Dharmashastra, Vol III, 388-390)). Certain classes of people were exempted from punishment under the ancient criminal law. The next phase saw the rise in Mohammedan Criminal Law over time, which influenced and brought about measures that formed the base of criminal system in India. The Mohammedan Criminal Law was based on the Koran, which is believed to be of divine origin and was the first source of Muslim Law. Consequently, the rules of conduct (called Sunna) were deduced from the oral precepts, actions and decisions of the Prophet, which formed the secondary source. Concurrence of the companions of Mohammed and the aid of analogy constituted respectively the third and fourth source of Muslim Law ((Fitzgerald, Mohammedan Law, 3-8)). Hidaya (laid down general principals) and Fatawa-i-Alamgiri (collection of case laws) expounded criminal law. Under Mohammedan law offences were generally classified into four main categories:

  1. Qisas or Retaliation: This applied to offences against a person, e.g wilful killing, grave injury etc.
  2. Diya: In certain cases, where retaliation wasn’t allowed, the injured party had the right to demand for blood money which was called as diya.
  3. Hadd: In cases of had, the law prescribed and fixed penalties for certain offences. Punishments under had were given in offences like zina(illicit intercourse), drinking wine, theft, highway robbery etc.
  4. Tazir: Tazir meant discretionary punishment. The conditions in conviction in tazir, were not so strict as for cases under hadd.

Though certain broad principals of Mohammedan Criminal Law were laid down, they were not certain and uniform in actual practise as they were conflicting, confusing and incompatible.  The inherit defect was in its conception and classification of crimes into three categories namely crimes against God, against the state and against under private individuals. There was no distinction between public and private law. The weakness of Mohammedan law was sufficient to encourage many persons to commit murders. The law of diya or blood money was highly unsatisfactory. There was no distinction between a tort and a crime and between a murder and homicide. The Mohammedan law as stated above, suffered from many defects, seeing which the English administrators introduced reforms from time to time to mould, refrain and amend the Muslim Law. Warren Hastings boldly criticised this law and attempted to introduce reforms in various forms. To regulate the machinery of justice in Bengal, Warren Hastings prepared plans and introduced reforms in 1772, 1774 and 1780 ((“Judicial Reforms of Warren Hasting” Chap. IV)). Lord Cornwallis reforms were introduced on 3rd December 1790, which included changes in many ways that improved the criminal law system. He introduced the importance of intension in committing a crime, instead of the weapon with which the crime was committed ((Cornwallis in Bengal,69; Rankin, Background to Indian Law,170)). Not only this, the decisions that were decided by the Government had to be codified and published in Indian languages ((Regulations XLI of 1793)). The process of introducing reforms in Mohammedan Criminal Law continued till 1832, when the law was totally abolished. Regulation VI of 1832 played a very important role in shaping the future course of criminal law in India. It empowered the judges of Nizamat Adalat to overrule fatwas and also provided that non Muslims who were under trial could demand that they did not want to be tried according to the Mohammedan Law of crimes. On the whole, the ultimate authority to decide cases was exclusively given to the presiding officer. After 1832, the jury system, as it prevailed in England, was introduced in India. This system was highly criticised as a failure, as the judge was partial and appointed only those who agreed with him. In order to tackle the existing defective state of legislation, the British Parliament passes the Charter Act, 1833. A major improvement was that the Governor General of Bengal was made the Governor General for India, who had the power to legislate the whole of British India. The powers of presidencies of Bombay and Madras to legislate were abolished. The Act also provided for the appointment of a Fourth Member, as a Law Member to the council of Governor General. In 1934, the 1st Law Commission of India was framed under the leadership of Lord Macauley, which took up the responsibility to prepare a Penal Code for India. The work of the Penal Code took over 2 years and the final report was submitted on 31st December 1837, though it was not immediately accepted by the government but was regarded as the most significant and historic contribution of the Commission. Civil servants questioned “the wisdom of enacting a law which declined to draw exclusively upon any one system of law, choosing instead either to borrow from several , or to rely on abstract theories of jurisprudence”. Such objections, coupled with the resignation of Macaulay in 1838 and other new appointments in the Indian administration, account for the delay in the code’s adoption. Moreover, subsequent administrations sought and sometimes effected their own modifications to the Code. For not less than 22 years, the Code remained in the shape of a draft and underwent minutely careful and elaborate revision by the members of the Legislative Council. Finally, the Indian Penal Code was passed into law on 6 October 1860 as an Act of XLV of 1860 and was translated into almost all the written languages of India. The Penal Code went through subsequent changes by Whitley Strokes. The case law material on the provisions and commentaries of the Penal code was multiplied. The Constitution guaranteed fundamental rights and directive principals of State to the citizens. There was also rapid growth in the automobile industry which changed the economic and political outlook of the people. It is important to note that from 1860 to 1980, the Indian Penal Code was amended somehow 58 times. With the advancements in developments in Indian conditions, it became essential to create separate and fresh provisions in the Penal Code. Sentences of transportation, imprisonment, fine, inequality in punishment, degree of crime, abolition or retention of capital punishment etc were matters involving major decisions and careful consideration by experts.

Courts of law try cases under procedures that resemble the Anglo-American pattern. The machinery for prevention and punishment through the criminal court system rests on the Code of Criminal Procedure of 1973, which came into force on April 1st, 1974, replacing a code dating from 1898.The code includes provisions to expedite the judicial process, increase efficiency, prevent abuses, and provide legal relief to the poor. The basic framework of the criminal justice system, however, was left unchanged. Besides the Indian Penal Code, 1860 many other statutes have been enacted to control various kinds of other crimes, notably white collar crimes, crimes against women and children, economic offences and against national integrity, against terrorism and cyber crimes.

Presently, Constitutional guarantees protect the accused, as do various provisions embodied in the 1973 code. Treatment of those arrested under special security legislation can depart from these norms, however. In addition, for all practical purposes, the implementation of these norms varies widely based on the class and social background of the accused. In most cases, police officers have to secure a warrant from a magistrate before instituting searches and seizing evidence. Individuals taken into custody have to be advised of the charges brought against them, have the right to seek counsel, and have to appear before a magistrate within twenty-four hours of arrest. The magistrate has the option to release the accused on bail. During trial a defendant is protected against self-incrimination, and only confessions given before a magistrate are legally valid. Criminal cases usually take place in open trial, although in limited circumstances closed trials occur. Procedures exist for appeal to higher courts.

India has an integrated and relatively independent court system. At the apex is the Supreme Court, which has original, appellate, and advisory jurisdiction (see The Judiciary, ch. 8). Below it are eighteen high courts that preside over the states and union territories. The high courts have supervisory authority over all subordinate courts within their jurisdictions. In general, these include several district courts headed by district magistrates, who in turn have several subordinate magistrates under their supervision. The Code of Criminal Procedure established three sets of magistrates for the subordinate criminal courts. The first consists of executive magistrates, whose duties include issuing warrants, advising the police, and determining proper procedures to deal with public violence. The second consists of judicial magistrates, who are essentially trial judges.  Third, petty criminal cases are sometimes settled in panchayat.

This is how, over time immemorial criminal law developed through various phases, each of it having some impact in one way or the other.

Judicial reforms in ancient India: An overview

Balakumar Rajendran, Student of Law, VIT Law School, Chennai

Lord Cornwallis succeeded Warren Hastings and came to India in September 1786 and he continued to be the Governor General up to 1793. He introduced reforms in the administration of civil and criminal justice, and great success was achieved in controlling corruption. The regulating act did not establish a control over the directors of the company, and also did not strengthen the power of the parliament over the company. William Pitt the Younger, became the Prime Minister of England he wanted to deal not only with the problems relating to administration machinery in India but also the wanted to strengthen the power of the parliament over the company.

Through Pitt’s India Act, 1784, he strengthens the power of the constitution over the company. The Pitt’s India act bought about many changes by setting up Board of Directors and recognizing the Court of Directors.

Cornwallis was appointed as the Governor General, he accepted the post with two conditions namely, the governor general will have the power to over ride his council and the office of the Governor General and the Commander in chief will be united under one person. So the Governor General and Council became the Governor Genera in Council.

Cornwallis took special interest to solve the problems with the land revenue, to improve the administrative machinery, and to introduce reforms in the judicial system. The functions of the Revenue Collector, Civil Judge, and Magistrate were given in the hands of a same person.  Regarding the criminal jurisdiction, it was stated that powers of trail and punishment must, on no account be exercised by any other than the established officers of the Muslim Judicature ((See, V.D. Kulshreshtha’s, Landmarks in Indian and Constitutional History, Tenth Edition. Pg.115)). The Governor General was specially required to keep a strict watch on the methods by which the servants of the company became rich ((See, Cornwallis Correspondence Part 2, 194)).

Cornwallis had little knowledge regarding the Indian affairs, for this Cornwallis largely depended on his advisors ((See, A.B. Keith, A Constitutional History of India, 1600-1935, 105)). But he had a thorough knowledge of the defects of the Regulating Act and the Act of Settlement and the role of warren Hastings in India.

Judicial reforms of Cornwallis

After Warren Hastings, Lord Cornwallis was another introduced various reforms. He introduced reforms in both civil and criminal justice. He was successful to a great extent in removing the uncertainty and confusion about the revenue collection.

He reduced the existing district from 36 to 23. For the each district English servants of the company was appointed as collector. The collector was in charge of collection of revenue, decides cases and all the matters relating to the revenue. He was authorized to act as judge of Mofusiil Diwani Adalat and to decide all civil cases. He was also act as Magistrate of the District. He decided the revenue cases and the revenue court was known as Mal Adalat. Appeal from Mal Adalat to Board of Revenue at Calcutta and then to Governor General in council. In the Mofusil Diwani Adalat the collector was judge to decide all civil cases and boundary disputes of Zamindar. Appeals from Mofusil Diwani Adalat was lay before Sardar Diwani Adalat, the judge was GGC for the mater more than Rs.1000/-. Appeals from Appeal from Sardar Diwani Adalat was allowed to King- in- council in England.

For each district the Registrar was appointed to decide the civil cases to te value of Rs.200/- But the decree passed by the Registrar must be counter signed by the Mofusil Diwani Adalat( the collector). The collector was to act as Magistrate he was empowered to arrest, try and punish the petty offences. The punishment was up to 15 strokes /15 days imprisonment. Offences relating to more than this was sent to Mufsil Nizamat Adalat for Trial. The British subjects apprehends by the Magistrate because if the Magistrate feels that it was fit case for trial, the British subjects were sent to Calcutta for trial. But the European was not sent for trial at Calcutta as they were not subjects of British.

Some of the demerits were the collector was overpowered. He misused his powers for personal gains. The collector was more interested in collecting the revenue, because the promotion was based on the revenue he collected. So he neglected the administration of justice.

Problems of Judicial Reforms (1793-1833)

The existence of Dual Court system of court, king’s court and the company’s court created many difficulties and conflicts. There was jurisdiction problem between the Supreme Court and the Mofussil Courts. Laws applied by the king’s court differed from the company’s court. Supreme Court claimed superiority and declared that Mofussil’s interference with its jurisdiction as contempt of the court ((See, Indian legal history(1972) chap.14, 338-339)). There was a necessity to coordinate and correlate the functions of the two sets of the court. The long period during which the Governor General and members of the Bengal Council had been the judges of the court came to end. They were replaced by the covenanted servants of the company who were not the members of the government.

Impact of reforms of Cornwallis (1993)

The defects of the Cornwallis’s plans were gradually becoming noticeable. The courts failed to protect the riots against the Zamindars. Litigation amongst the richer section of the society also increased. On the whole the litigations chocked the courts and the sale of estates become frequent ((See, A.B. Keith, A Constitutional History of India, 43)). In civil courts the cases piled up, which in turn affected the revenue collection. In 1794, steps were taken to resolve the issues.

Reforms of Sir John Shore (1793)

Sir John Shore, was well aware of the situation in India by his experience with Lord Cornwallis. In 1793 the Registrar’s court was empowered to decide cases up to Rs.200. Registrar’s decision will be valid only it is signed by the Diwani Adalat. In 1794, Regulation 8 provided that Registrar’s decision will be final in all civil suits up to valuation of Rs.25 ((See, W.H. Morkley, The Administration of Justice in British India, 61)). Judges of the Diwani Adalats found countersigning the Registrar’s judgments as a difficult task. The Regulation also authorized the judges of the Diwani Adalats to refer to the Collectors for the scrutiny and report the cases involving the adjustments of accounts. The findings of the collector’s report was not binding on judges and they were free to decide the cases according to the law. In 1794, The collection of revenue and administration of justice were joined to dispose arrears and to secure collections of revenue.  In 1795, the work of the Diwani Adalats were reduced, and the appeal cases up to Rs.200 were sent to the court of appeal since there were lack of judges it caused a great inconvenience for the litigant parties. The District Diwani Adalats were authorized to hear all civil cases in which valuation was more than Rs.200.

Another important reform is imposition of court fees, earlier in 1793 Lord Cornwallis abolished court fee. Court fee was not only imposed on new cases but for the pending cases too. If the court fee is not paid within the given time the case would be dismissed. In 1797, Sir John Shore further increased the court fee and it was made compulsory to use special stamp papers for filling papers in the court. Decrees of the Provincial Courts of Appeal were final in the case of money or personal property up to five rupees in value, appealable to Sardar Diwani Adalat and further appeals to King in Council. The administration of Justice in India was reformed by the passing the Act of 1797 which reduced the number of judges in the Supreme Court at Calcutta to three. The act also recognized and conformed the preparation of a Code of Regulation ((See , Lord Macaulay’s Legislative Minutes, 220-224)). The courts were required to administer justice according to those regulations.

Reforms of Lord Wellesley

In May 1798, Lord Wellesley arrived in India and succeeded Sir John Shore as Governor General. Lord Wellesley was against the concentration of judicial, legislative and executive powers in the Governor General Council. Therefore the Regulation 2 of 1801 providedd that the Sardar Diwani Adalat and the Sardar Nizamat Adalat were to be presided over by three judges selected and appointed by the Govrnor General in Council. Chief judge would be the member of the council and the other two judges are the covenanted civil servants of the company.

In order to clear the pending cases the Head Native Commander was appointed as Sardar Ameens were appointed. They were authorized to decide cases valuing up to Rs.100, which is to be referred by the judges of the Zila and the city courts. So in zillas and city courts assistant judges were appointed to dispose the pending cases. They were required to hear appeals from the Court of Registrars and original suits from the Zila and city courts. During Lord Wellesley’s period the adalat system extended ceded and concurred territory ((See, V.D. Kulshreshtha’s, Landmarks in Indian and Constitutional History, Tenth Edition. Pg. (169).)).

Reforms of Lord Cornwallis

Lord Cornwallis came to India for the second time and succeeded Lord Wellesley. He introduced a very important reform in the constitution of the Adalats. It was stated that chief justice will not be a member of the council instead a covenanted civil servant f the company will act as chief Judge. His aim was to separate the judicial functions from the executive and judiciary.

Reforms of Lord Minto

Lord Minto was appointed as Governor General of Bengal government of the company in July 1807. By regulation of 15 of 1807, Lord Minto increased the number of judges of Sardar Adalats from three to four. Out of these four judges, the chief judge was appointed a member of the Governor General’s council, in this way he mixed the judicial functions with legislative and executive. The number of the judges of the Sardar Adalats were increased from three to four specially to dispose the pending cases. The  Magistrates powers and jurisdiction was also increased. They were authorized to punish offenders with a fine up to RS.200 and punishment not exceeding six months ((See, T.K. Bannerjee, Background to Indian Criminal law, 154)). The original jurisdiction of the Zila and the City courts were restricted to cases value not more than Rs. 500. Due to great increase in the cases before the Sardar Adalats it was considered necessary to increases the number of judges. Regulation 12 of 1811 authorized the Governor General to appoint the civil judge. Now onwards the Chief Judge was not required to be a member of the Council. Thus, the judicial function was separated from the executive and legislative.

Reforms of Lord Hastings

After lord Minto, in 1813, Lord Hastings was appointed as the Governor General. He was in power for a period of 10 years. Lord Hastings introduced many reforms in civil and criminal judicature for the country. In Chater Act, 1813, the sovereignty of the crown over the company’s territorial acquisitions of India were clearly proclaimed. This claim was announced formally to the diplomatic world and was recognized by the French, the Duutch and the convention with the Netherlands. The position of the British Government was thus, placed “beyond question internationally ((See, Ibid, 596)).”

The provincial governments in India were empowered by the Chateer of 1813 to make laws, regulations and articles of war of their native and armed forces and authorize the holding of Courts Marital. The territories of India became the property of England. Those trading, residing, or holding movable property at a distance of more than 10 miles from a presidency town, were placed for civil cases, under the jurisdiction of the Civil Courts. Special penalties were provided for theft, forgery, perjury, and coinage offences as the existing provisions of a common statue law were considered to deal with them. In the opinion of the Court of Directors it was necessary to increase the number of Indian Judges, Munsifs, and Sadr Ameens, to deal with the increasing litigation and court work.

In 1814 the jurisdiction of the Munsifs were increased from Rs.50 to Rs.64, authorized to try cases of money and personal property against the natives, appeals were given to District Diwani Adalat. The Sardar Ameens were empowered to decide original suits, referred by the zila and the city courts, upto the valuation Rs.150. decisions of the Sardar Ameens an appeal lay to Zila and City courts whose decisions were final. In 1814 the Zila and the City courts were empowerd to decide civil cases up to the valuation f Rs.5000. the post of thee Assistant judge was abolished. The no of judges in the provincial council was increased from three to four. Regulating Act 3 of 1812 empowers the magistrates to refer to the natives law officers and Sardar Ameens, they were authorized to punish offenders by imprisonment for a term not exceeding 15 days and fine up to Rs.50. In 1818 the jurisdiction of the magistrates and the joint magistrates was enlarged and they were authorized to try persons who were charged with offences of theft and burglary and those who attempt these crimes. In 1823 the Court of Circuit and Sardar Nizamat Adalat were given more powers.  Lord Hastings took special interest in recognizing the police force to deal with the criminals and to maintain law and order in the country. He realized the importance in removing the defects in the existing Mohammedan Law of Crimes.

Judicial reforms of Lord Bentinck (1828)

Lord William Bentinck, succeeded Lord Amherst as Governor General. He recognized and consolidated the whole system of civil and criminal courts. He abolished the Circuit Courts as it was responsible for many defects in the administration of justice in civil and criminal cases. Circuit Courts Regulation 1 of 1829 he appointed Commissioners of Revenue and Circuit to control the working of the Magistracy, Police, Collectors and other revenue officers. Each commissioner was put in charge of a small territory. The provinces of Bengal, Bihar, and Orissa were divided into 20 divisions. Regulation 2 of 1829 provided that the appeals from the Magistrates or Joint Magistrates ere to lie to the Commissioner of division. The decision of the commissioner was final and conclusive.   

Powers of Sadr Ameens, and city judges were increased. The Magistrates were authorized to refer criminal cases to Sardar Ameens or Principal Sardar Ameens for investigation. It was found that the commissioners of Revenue and Circuit were given too much of work. Therefore, the Governor in Council was authorized by Regulation 7 of 1813 to empower any Zila and City judge not being a Magistrate to hold criminal sessions. It also gave rise to the creation of District and Sessions Courts in each district which decided civil and criminal cases.

To avoid delay in the administration of justice he established Sadr Nizamat Adalat at Allahabad. Indians were gradually appointed to hold judicial office. In 1832 the Commissioners of circuit and Sessions Judges were authorized to take the assistance of respectable natives in criminal trails. In the sphere of civil justice also, respectable Indians were appointed as judicial officers. In order to improve the civil judicature all the functions of the Provincial Courts of Appeal were transferred to the District Diwani Adalat. Thus the provincial courts of appeal were abolished.

Civil and revenue jurisdiction are given to collector. Suits relating to rent were transferred to the exclusive cognizance of the collector of revenue. Their decision was final. The Act of 1833 established an All-India Legislature with general and wide powers to legislate. The Governor General at Calcutta was made the Governor General of India. By adding a Law member to the Governor General Council and the abolition of the right to legislate by regulation in the provinces, the opportunity for centralization of Law was provided by the Act. Necessity of a general system of judicial establishments and police was also referred to the Law Commission.

Development of legislative authorities in India from 1861-1935

Mahima Gherani, Student of Law, VIT Law School, Chennai

Tracing back Indian history, we have seen the emergence of new legislative authorities over time, one outsourcing the other and coming up with new developments and amendments. In this material we analyse the growth of legislative authorities and their impact in India between the period of 1861 to 1935. Focussing from the roots of development, it started with the emanation of the Indian Councils Act 1861.

The Indian Councils Act 1861 sowed the seeds for the future legislative as an independent entity separate from the executive council. It was the first ever constitutional structure for India, whose significance is seen even today in the advancement of other legislative authorities. Primarily this Act had 3 main objectives:

  • Expansion of the governor general’s legislative council
  • Restoring legislative powers to the presidencies of Bombay and Madras which were taken away by the Charter Act 1833
  • Providing for establishment of legislative bodies in other provinces ((P Jain, Indian Constitutional Law, 7th Edition, Pg 491)).

According to this Act, the Indian people were included in the Governor General’s Council for the first time in the history of India ((Available at http://csspoint.yolasite.com/resources/Indian%20Council%20Act,%201861%20&%201892.pdf)). Further the members of the Legislative Council were increased. It provided for expansion of the Executive Council and the numbers of its members were raised from 4 to 5 and its nomenclature was changed to Imperial Legislative Council. The new legislative council was to consist not less than 6 and not more than 12 persons nominated by the Governor General for 2 years, and at least one half of the nominated members were not to hold any office under the government ((M.P Jain, Indian Constitutional Law,7th Edition, Pg 491)). The Act provided for the creation of new provinces by the Governor-General and he had the authority to divide or alter the limits of any presidency, province or territory. Apart from this he was given the power to appoint Lieutenant Governors. With the Indian Councils Act for the first time Portfolio system started. Each member of the Council of the Governor General was allocated portfolio of a particular department. Lord Canning was the First to start a Portfolio system. The Governor General was authorized to exercise a veto and issue ordinances in a situation of emergency ((Available at http://www.gktoday.in/indian-councils-act-1861/)). Although the Indian Councils Act of 1861 marked an important step in the constitutional history of India, it had no relation with the problems of general public. The main drawback was that it made the Governor General omnipotent, as it brought the whole of India under his control which faced opposition from the masses over a long period of time. Subsequently, an Amendment Bill was presented in the House of Lords, which brought in the Indian Councils Act of 1892.

Known as the Amending Act of 1861, the Indian Councils Act 1892 contributes to the growth of representative institutions in the history of India. Lord Dufferin, during his rule realised a necessity for a more powerful Legislative Council to have greater freedom for the Government of India and so appointed a Committee to analyse the reports. The recommendations of this Committee formed the basis of the Act of 1892. The reforms of the Act in 1892 were mainly in the Legislative Councils in India. This act mainly contributed in 3 aspects. First, it increased the number of members in the Central and Provincial Legislative councils. Second, the principal of elections was indirectly introduced through the recommendation basis. And Thirdly, the functions of the Legislative Council were increased immensely. The council was now permitted to take decisions on the annual financial statements without the right to vote. The Indian Councils Act 1892 gave the members right to ask questions on Budget or matters of public Interest, but supplementary questions were not allowed ((Available at http://www.gktoday.in/indian-councils-act-1892/)). The act also increased the number of non officials in councils to between 10 and 16, but provincial representation was abolished. The Indian Council Act of 1892 gave the Indians an opportunity to participate in the legislative process and understand the rules and procedures associated with the same. Though these reforms had too many merits they were unsatisfactory in the following areas:

  • The functions of the councils and its members were restricted
  • The rules of nominations in elections were highly defective and fraudulent ((Available at http://www.indianetzone.com/24/the_indian_council_act_1892.htm)).
  • Members questions could be disallowed without any proper reason
  • There was no chance to amend the bills prepared by the Government.

Lord Dufferin was succeeded by Lord Curzon, who was responsible for the partition of Bengal in 1905. He held no good opinion of the Indians and tried to curb and destroy the self government by his rough oppressive measure. Lord Minto succeeded Lord Curzon, but had faced many difficulties due to the devastating measures that were already laid down by Lord Curzon.

Lord Morley, the Secretary of State for India, and Lord Minto, the Viceroy of India agreed to introduce major political and constitutional reforms. They appointed a committee and the annual report was submitted to the Viceroy, after which the Bill was drafted with negotiations between Minto and Morley. The Cabinet passed it in February 1909 to become an Act, which was to be called as the Minto-Morly Reforms or the Indian Councils Act 1909. This Act was a significant improvement in the sphere of constitutional reforms. The Act increased the size of the Central and provincial Legislative Council. The Legislative Councils under this Act contained 3 types of members- members of the Executive Council, nominated non official members and elected representatives of the people. The powers of both the legislative councils at the centre and state level were highly increased and the members were given the right to ask supplementary questions ((Available at http://historypak.com/minto-morley-reforms-1909/)). Further, the members of the Legislative Council were not authorised to discuss foreign relations of the Government of India and its relations with the Indian princes as their powers were restricted greatly. The greatest defect of Minto Morley reforms was the introduction of communal electorates for Muslims. The Indian Councils Act, 1909 was followed by the Delhi Durbar in 1911 for which the King of England came to India for the 1st time, to bring about a change in English policies in India. The government passed the Indian Press Act 1910, Act of 1913 and The Defence of Indian Act 1915 to suppress the rising Indian ambitions that grew over time. Indian nationalism rose very high under the impact if World War I, which changed the outlook of England people towards Indians. Britain wanted full cooperation in terms of money, man power and army from the Indians for the World War. This was the time when Montague succeeded Sir Austin Chamberlain in 1917 as the Secretary of State for India, who declared the future policy for India which brought revolutionary changes in their own way. In consultation with the Viceroy, Lord Chemsford, they drew a report which later came to be known as the Government of India Act 1919 ((Available at: http://www.publishyourarticles.net/knowledge-hub/history/explain-the-significance-of-government-of-india-act-1919.html)).

This Act of 1919 had its own Preamble and introduced changes in the Home Government in England, the Government of India, the provincial government and the civil services. It introduced changes in the constitution of the Indian Council i.e. it was to consist of not less than 8 and not more than 12 members whose term was fixed at five years with a fixed salary ((Available at: http://historypak.com/montagu-chelmsford-reforms/)). The central legislature was enlarged which in turn provided larger opportunities to influence the government. The Governor General became a very important and powerful member of the Executive Council. The Act also increased the number of Indians in the Executive Council to 3 members. The system of ‘Dyarchy’ or a kind of double government in the Provinces was introduced. Provincial subjects were divided into two categories “Transferred and Reserved.” Transferred subjects which were public health, education, local self-government, and agriculture were under the control of Minister; likewise all transferred subjects were unimportant. Reserved subjects included administration, police, land revenue etc. which were under the control of Governor with the help of his secretaries. It was indirect control over transferred department by reserved department. Hence, Governor was the head of transferred and reserved subjects. As regards the Central Legislature became bicameral which was to consist of the Council Of State (Upper House) and the Central Legislative Assembly (Lower House). In order to remove conflicts between these two houses, the Act of 1919 provided for joint committees, joint conferences and joint sittings of the Houses. The Governor was the pivot of all the administration and was the final authority in the reserved as well as transferred subjects. These reforms failed because of external as well as inherent defects of the system of Dyarchy which gave rise to friction. The way these provincial subjects were classified into Transferred and Reserved was more a myth than a reality ((See, Kerela Putra, The Working of Dyarchy in India, 57)). In short, the Act did not satisfy the aspirations of the people which were followed by a series of protests by the people due to their repressive measures such as the Rowlett Act, Jallianwala Bagh massacre and enforcement of Martial Law in Punjab. After the Act of 1919, the Government of India Act, 1935 was an important milestone on the road to a fully responsible government in India. The Act marked a radical change in 2 aspects: firstly, it introduced a federal form of government in place of the unitary form and secondly, the provisions of the Act envisaged a federation to which the native States of India were to accede. The main provisions of the Act were:

  • The Act provided for the formation of All India Federation where in it was purely voluntary for the native states to join it.
  • Division of power between the Centre and the units under three lists, namely, Federal List, Provincial list and the Concurrent list.
  • The system of dyarchy at the province was abolished and it established dyarchy at the Centre ((Available at: http://www.preservearticles.com/201012271754/government-of-india-act-of-1935.html)).
  • The federal legislature was to be bicameral, consisting of the Federal Assembly and the Council of States.
  • The powers of the Indian Legislatures were severally restricted.
  • The entire provincial administration was placed under the Ministers appointed by the Governor.
  • The Act abolished the Indian Council of the Secretary of State.
  • Federal Courts with original and appellate jurisdiction were established.
  • The Governor General had all the administrative, legislative and financial powers.

This Act was criticised by many political leaders and thinks including Pandit Jawaharlal Nehru and Pandit Madan Mohan Malaviya. The later British Prime Minister, Mr Attlee observed that the keynote of the Bill was mistrust. Some important defects include the system of dyarchy at the Centre, indirect elections to the Federal Assembly, discretionary powers of the Governor General and the mistrust of Indians in their British Masters ((Landmarks in Indian Legal and Constitutional History, 10th Edition by B.M Gandhi, Page402)).

All these developments that took place during 1861–1935 are regarded as the most important ones in India’s History as they marked the beginning of setting up of various provisions that still exist in our Constitution.

The Regulating Act, 1773

Balakumar Rajendran, Student of Law, VIT Law School, Chennai

Group of traders from England got monopoly status to trade in East India and landed at Sultanati, India. The company acquired constitution, powers and privileges from the chatter of 1600 of Queen Elizabeth. The company’s ships arrived to India at the port of Surat, in 1608, got permission from the Mughal Emperor, Jahangir, to start a factory at Surat. To enforce obedience in all Englishmen resident and to punish them according to English laws companies power’s were further expanded in the charter of 1661. The administrative and judicial arrangements at Surat Factory were taken care by the president and council. The empowerment of The British East India Company in Culcutta was proved when it acquired the Zamindari Rights from Emperor Aurangzeb in the year 1698 the status of Culcutta was raised to Presidency an English officer was appointed to act as a Zamindar named, Collector. The early centers of British powers in India were three presidency towns of Madras, Bombay and Calcutta ((See M.P.Jain’s legal and constitutional history, seventh edition. Pg.15)). In 1678, the court of the Governor and Council was designated as High Court of Judicature ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg.48(second phase:1678-1683).))and established Admiralty courts in India try maritime cases by the Chater of 1683. In Bombay by the New Judicial Plan of 1672 The English Law’s were introduced into Bombay abolishing totally the laws and customs of the Portuguese while this was the situation in Bombay in Madras The company issued a Chater in 1726 which authorized the company to create a Corporation of Madras and established a Mayor’s court ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg.52(establishment of corporation in madras: the mayor’s court).)).

Reasons behind 1773 Act

In Culcutta, There was a lack of proper judicial administration, there was no proper central authority, there was corruption amongst the servants of the company, added to it the company’s defeat in the hands of Hyder Ali lead to a terrible famine in Bengal. The company’s servant exploited the wealth and returned back to England and no one was interested in the welfare of the nation. The newly enriched ex-servants of the company used the wealth to purchase seats at the house of the commons and purchased the shares of the company and thus landed the atrocities ((See M.P.Jain’s Legal and constitutional history. Pg.74)). Parliament had to intervene when there was a financial embarrassment in the company; company had to approach the British government for a big loan. The British government appointed two committees a secret and a select committee to check the affairs of the company, for which the loan can be granted. The committee in a report exposed the defects and deficiencies prevailing in the existing structure ((See Roberts, history of British India, 182 (1915).)). To remove the evils of the prevailing system the parliament enacted the Regulating act of 1773. British Parliament took interest over the East India because a realization was dawning on them that company was no longer a mere commercial body, but had assumed the political and territorial power of India ((See M.P.Jain’s Legal and constitutional history. Pg.74)).

Provisions of the Regulating Act

The Regulating act effected two major changes in the constitution of the company.

  • The term of the directors of the company were increased from one year to four years.
  • Voting power was restricted to those who held stock worth 1000 pound or more.

The term of the directors were increased because it was expected that it would give a grip over the company’s affairs to the directors and by increasing the qualification of the voting power there may be quality shareholders in the company ((See M.P. Jain’s Legal and constitutional history. Pg.75)). The act tightened the British power over the company in several ways. In order to assert parliament’s control over the company directors were required to place regularly all corresponding to the concerned authorities of secretary and treasury.

A Governor General and four council members were appointed for the presidency of Calcutta. Three in four of the council members were Englishmen so they are having no vested interest over India and will discharge their duties sincerely. They will hold the office for a term of five years. They were given all powers to extend the territorial acquisition in India. Madras and Bombay were also placed under the supervision of the Governor General ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg. 109-110)).  Warren Hastings was appointed as the first Governor General.

Establishment of Supreme Court of Judicature

Section 13 of the Regulating Act empowered the crown to establish a Supreme Court in Calcutta. Supreme Court consisted of one Chief Justice and three other judges inferior to the Chief Justice, being barristers of not less than five years of practice. Sir Elijah Impey was the first appointed Chief Justice and all Councils were also appointed by king.

Supreme Court was given very wide jurisdiction covering every possible type of litigations going on the Indian Courts in those days, cases against the company and the corporation of Calcutta also placed under the Supreme Court.

Civil Jurisdiction of the company extends to persons of Calcutta, Bengal, Bihar and Orissa employed directly or indirectly in the service of the company, persons who have voluntarily agreed in writing to refer their disputes to Supreme Court. Supreme Court was also given to accept the cases against the Governor General and any of his Councils. The Court was required to follow as for as possible, the Criminal procedure of British Courts. The Supreme Court cannot make arrest on Governor General or any of his councils. The courts were authorized to exercise Ecclesiastical jurisdiction to the residence in Bengal, Bihar, and Orissa, The Ecclesiastical laws were based on the Diocese of London. The admiralty jurisdictions were vested with the entire jurisdiction which was available to court of admiralty in England. Writ jurisdiction was the most important jurisdiction available in the court by the issue of the prerogative writs in the nature of mandamus, certiorari, procedendo or error, it could effectively control all the courts subordinate to it as well as other authorities created by the company ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg. 113)).

The prerogative writs are mentioned below:

Mandamus

A judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

Certiorari

A writ or order by which a Higher Court reviews a decision of a Lower Court.

Procedendo

In common law jurisprudence, procedendo is one of the prerogative writs. It is a writ that sent from an appellate court to the lower court with an order to proceed with the judgment.

Cases

Raja Nandakumar case

Raja Nanda Kumar, he was residing in Bengal and was  big Zamindari.In March, 1775  he laid a letter before the Council member  with charging allegation against Warren Hastings.According to the letter Warren Hastings received bribe form former Nawab wife Munni Begum for granting a Zamindari. Immediately council members they arranged meeting to issue summons to Nanda Kumar to attend before council to produce vouchers in support of his charges of bribery against Hastings. With the summons of Council, Nanada Kumar produced a letter in person which was written to him by Munni Begum. The council majority decided that Hasting received a sum of Rs.3,45,105 as bribe and directed him to refund the money in the Company’s Treasury. While charges against Warren Hastings were still in pending which were subsequently dropped. Nanda Kumar was suddenly arrested at the instances of a Calcutta merchant Mohan Das on a charge of forgery.

He was also implicated in a case of conspiracy when in the absence of proof was dropped. He was put on trail before the Supreme Court presided over by the Sir. Elijah Emphey on the charges of forgery. The trial began on 7th June 1775 and continued for a period of eight days without any adjournment. On the basis of Mohan Prasad evidence, the verdict of guilty was returned by the jury and Raja Nanda Kumar was condemned to death. Under the a statute passed by the British parliament in 1729. The death sentence was duly executed on 5th August, 1775.

Peculiar features of the Trail

  • Charge preferred against Raja Nanda Kumar was shortly after he had leveled charges against Warren Hastings. Chief Justice Imphy was a close friend of Hastings. Every Judge of the Supreme Court cross examined the defense witness due to which the whole defense of Nanada Kumar collapsed. After the trail, when Nanda Kumar was held guilty by the court he filed an application for granting leave to appeal to the King-in-Council but the court rejected his application.
  • Nanda Kumar committed the offence of forgery nearly five years ago, i.e much before the establishment of Supreme Court. Neither under Hindu Law nor under Mohammedan Law was forgery regarded a capital crime ((See BLS LLB- SEM 3 HISTORY OF COURTS CHAPTER 3. < http://mohdyasinblsllb.blogspot.in/search/label/BLS%20LLB%20-%20SEM%20III%20HISTORY%20OF%20COURTS%20CHAPTER%203> last assessed on 15/4/2015)).

Patna Case

Shahbah Beg Khan, native of Kabul came to India and settled down in Patna. He married Nadirah Begum and acquired a large amount of money while in the service of company. He had no heir, therefore he invited his nephew Bhadur Beg  from Kabul to reside with him the intention was to adopt him. But before he could do so he died in December, 1776. Bahdur Beg took the first step and filed a suit against the Begum in the Patna Provincial Council for getting right over the property.

In the provincial Court the case placed before Muhammadan law officers. The officers after full hearing reported to the council that gift deeds were forged documents and no gift was made in favor of Nadirah Begum by deceased. They also reported that the nephew, Bahadur Beg court not be adopted under Muslim law. Therefore, recommended that property be divided into four parts out of which three parts were to be given to Bahadur Beg on the basis of consanguinity (relationship by blood) and also heir of the diseased and the fourth part be given to the widow.

Nadirah Begum was dissatisfied with the decision of the provincial Council, and she filed an appeal before the Sadar-Diwani-Adalat at Calcutta. Due to their busy routine work they could not considered the matter for a long time. With indifferent approach of the court, she filed a suit in the Supreme Court against Bahedur Beg, Kazi and mufti for assault, battery, unlawful imprisonment and claimed 6 lakhs as damaged.  The supreme court issued ordered to arrest of Bahadur Beg, Kazi and mufti.

The Supreme Court decided that the documents were genuine and that Kazi and mufti did not act in good faith. The court awarded the damages of Rs.3,00,000 in favor of Nadirah Begum and the law officers were imprisoned.The whole case was bitterly criticized on the grounds that which law Bahadur Beg and law officers were subjected to the jurisdiction of the Supreme Court.The Supreme court justified his jurisdiction over Bahadur Beg as a former and paying land revenue to the company.

Cosijurah Case

One Cossinaut, Baboo had loaned a large sum of money to the Raja of Cossijurah. He had made attempts to recover the money through the Board of Revenue at Calcutta. He was not successful. Thereafter he sued the Raja in the Supreme Court. The defendant raised the objection regarding the jurisdiction. The jurisdiction of the  Supreme Court was justified on two grounds 1) the defendant was employed to collect revenue; and 2) the document pertaining to the loan were executed by the Raja at Calcutta. Supreme Court issued a writ of Capias to arrest the defendant and fixed a bail of Rs.3,00,000. The Raja absconded. Therefore the writ could not be executed against him. The government challenged this writ with an intention to save the Raja. Government issued a notification to the landholders that they would not be tried before the Supreme Court, and the writ of capias could not be implemented. As the writ of capias could not be executed, the Supreme Court issued a writ of sequestration of the Raja’s property. The sheriff of the Court went with a small force to seize Raja’s property. Knowing this the government also sent another force for the protection of the Raja. In the sequence, the government’s force arrested court’s force.

After the cossijurah case the difference between the Court and the council went for deeper than any of the topics of grievances. Due to the serious conflicts between Supreme Court and the government, entire facts were brought to the notice of  British Parliament. As a result, the British parliament moved to amend the Regulating Act by passing another act in 1781(Settlement Act).

The Settlement Act of 1781

Parliament of Great Britain passed the Settlement Act of 1781. This act significantly reduced the powers of the Supreme Court at Calcutta. Supreme Court was made immune to take action against the servants of the company if the work they have done comes under the official capacity. The Act separated the Governor General in council and the revenue matters from the Court’s Jurisdiction. The Supreme Court’s jurisdiction was restricted only to Calcutta. The appeals from the provincial council were taken to the courts of Governor and Council, and that was to be the final court of appeal. The act also asserted that Mohammedan cases should be determined by Mohammedan law and Hindu law applied in Hindu cases. The Settlement Act of 1781 rectified the flaws in the Regulating Act.

The Major demerits

The act was infavour of Governor General Council against Supreme Court. The Governor and Council was made superior and arbitrary, these changes were made to capture the territories in India. The Supreme Court was not allowed to make laws and executives were beyond the control of judiciary.

Supreme Court in other presidencies

The administrations of justice in the other presidencies become arduous because of the growing population in the British colonies crime rate raised and the cases got piled up. Judges did not have adequate knowledge of law, which made them tough to take decisions. In 1791 Madras Council pointed out the difficulties and suggested that appeals should go to the Supreme Court as a remedy to it in 1791 parliament passes a act to establish Recorder’s court and Bombay and Madras. Sir Thomas Strange and Sir William Syer were the first recorder.

Recorders court consisted of three aldermen and a recorder. Reorder was a barrister of not less than five years of standing. The Recorders Court absorbed into itself the Mayor’s court under the Chater of 1753. Its jurisdiction extended to British subjects, or, his Majesty’s subject residing within the territories of the respective town as well as in the territory of native premises in alliance with the government; and, to persons who are employed by, or were directly or indirectly in the service of, the company or any of his Majesty’s subject ((See M.P.Jain’s Legal and constitutional history. Pg-116)).  Administered Hindu laws to Hindus and Muslim laws to Muslims and if the parties are of a different religion then the law of the defendant would be applied. The courts of Requests established in the three presidency towns by the Chater of 1753 had been found beneficial for deciding petty civil cases within 5 pagodas then its jurisdiction was increased to eight pagodas.

In 1800, British parliament passed an Act authorizing the crown to establish the Supreme Court in the presidency towns Madras and Bombay. The powers from the recorder’s court were transferred to the Supreme Court. In 1801, Sir Thomas Tragne the recorder was appointed the chief justice of Madras Supreme Court. In Bombay Supreme Court was inaugurated in 1824 and Sir.E.West being the chief justice. The Supreme Court’s emulated Supreme Court of Calcutta.

The powers of the Supreme Courts at Bombay and Madras had similar power to that of the Calcutta Supreme Court these courts were lawful within their respective territorial jurisdiction.