
Judicial System Before 1947
The British ruled India for almost 190 years in which the set up a poor copy of British Judicial System as Indian Judicial System.
Judiciary before intervention of British:
Before the establishment of East India Company and British Rule, local Indians established their own system of judiciary which are as follows:
- Dravidian System
The locals of India had established their own system of Judiciary. Arians adopted this system with slight modifications. According to the traditions and customs of Hindu caste system under the panchayat system, the cases and issues were decided. The Raja was the highest court of appeal. There were civil and criminal courts at local level. The judges were advised by the learned Brahamins as to the interpretation of Hindu law. The punishments were made on caste system.
2. Qazi System
The Arabs entered into India in 712 AD and introduced Qazi System for criminal cases in the areas of their influence while retained the old panchayat system as to civil cases. They introduced several changes in the existing Judicial System and made it more human. The Qazis were appointed to deliver justice.
3.Islamic Judicial System:
The Mughals introduced Islamic Judicial System which was mixture of Islamic, Persian and local Hindu System. At local level, the Panchayat System was limited up to the religious matters of Hindu community.
Having the Turkish occupied and took control of the Maditerranean Sea, the European Trade was totally at the mercy of the Muslims. The English started changing the prevailing judicial system in India in order to strengthen their power.
Introduction of New Judicial System by British Rule:
In 1948 onwards English people succeeded to establish their power in India. The Governor and East India Company were authorised to make laws that leads to establish a new judicial system in India.
Legislation of New Laws:
- Charter to make Laws, Constitution, Ordinances and Orders:
In 1600 Queen Elizabeth granted a charter and because of this Charter, the British East India Company empowered to make laws, constitutions, orders and ordinances as necessary for the punishments subject to English Laws and customs.
- Commercial Treaty & other Laws:
In 1615, the England entered into a commercial treaty with Mughal Emperor. Thereafter the British East India Company produced laws and a compilation of rules which were new to India.
- Charter Act
In 1661, the Charter Act was introduced and provisions were made for the use of English Criminal Law in India. In 1666 in Madras as early styled court consisted of the Governor-in-Council. Member of Company’s Court of Committees and a Solicitor prepared a draft code of laws.
4. New Charter of 1698
In 1698 new Charter granted by King William III which determined that the East India Company would carry out its business in accordance with by-laws, constitutions, orders, rules and directions provided by its Central Court as were not repugnant to the laws of England.
- Code of Law
Hindu Scholars, of Hindu Commission prepared a code of Law which was called as “Vivadamava Setu”. It was prepared in Sansikrit during the period of 1773-1776.
- Regulating Act 1773
The Regulating Act was passed by the parliament in 1773 and introduced parliamentary supervision over the Company. It also modified its constitution both England and in India. Judicial powers of the 6 provincial councils transferred to 6 Deawani Adalats. Theses Adalats were presided over by servants of the English Company. Number of these courts was increased to 18 for all kind of civil cases. The duties of Faujdari were transferred to the District Judges. The criminals were tried in the Faujdari Adalat under Indian Judges.
- Indian Penal Code:
A law commission was appointed in 1834 who prepared a draft of the Indian Penal Code.
8. Indian Public Law:
The beginning of modern Indian public law appeared in 1833 with the creation of the Indian law commission which produced the Indian penal code and later the codes of criminal and civil procedure.
9. Charter of 1853
New commission was appointed to create High Courts in India on the lines of British judicial system and the compilation of uniform code of law applicable to the whole judicial system.
10. Criminal Procedure Code:
Inasmuch as the penal code and first criminal procedure code came into force, the Islamic system of justice disappeared in 1862. The Crown was empowered to appoint the Chief Justice and Judges for these High Courts.
11. 1866 Regulation:
This regulation was amended in later years, established a Chief Court for the Punjab much on the same lines as the High Courts, though the judges were to be appointed by the Governor General in Council and not as in the case of the High Courts by the Crown.”
12. Act VI of 1990 in 1872:
After the extension of British territory in Burma further amendments became necessary and Act VI of 1900 established a Chief Court in Burma.
13. The Indian National Congress 1885
The Congress drew the attention of the government for separation of judicial and executive functions in the administration of criminal justice. In 1911 under the Indian High Courts Act, three High Courts were established at Patana, Lahore and Rangoon, The Act enabled the Government to establish new High Courts and raise the strength of judges from fifteen to twenty. The British Government made no change in the composition of High Court Judge’s till the independence in the provisions of the Act, 1861.
14. Government of India Act, 1935
This Act empowered the Government abolished the old proportional arrangements of judges of High Courts. Old rule of appointing the Chief Justice was modified to be appointed from the pleaders of High Courts or from the officers of the Indian Civil service. Sections 200 and 203 of the Government of India Act, 1935 provided for the creation of Federal Court, located at Delhi and consist of Chief Justice and not more then six puisne judges. Qualification of judges would be at least having five years experience as judge of High Court or at least ten years of experience for barrister and advocates of Scotland or at least ten years of experience for pleader of High Court of a Province.The eligibility of the Chief Justice would be at least fifteen years of experience as a pleader, barrister of advocate.
Grant of Judicial Power for establishment of Courts:
On the request of East India Company, King James I granted the judicial powers to civil and military personnel of company in India by marital as well as municipal laws. Following courts were made:
- Chaultry Court:
In 1652, the Chaultry Court started operation in Madras to hear civil case of debt upto 50 pagodas. This Court presided by One Indian and two Englishmen.
- Free Justice by Court of Conscious:
In 1672 Wilcox who was judge of the Bombay Court of Judicature, started a Court of Conscious to give free justice to poor. It worked every Saturday.
- Court of Judicature:
In 1672, Aungler established a Court of Judicature for Bombay and George Wilcox was its first judge.
4. Court for Civil and Criminal Cases:
In 1678 the Madras Court started operated the judicial activities. The new court tried civil and criminal cases according to English Law.
5. Zamindari Court for civil and criminal cases:
In 1682, the Government of Bombay established the office of the Coroner.
in 1694 in Calcutta the council possessed a zamindar status therefore, a Zamindari Court was convened to administer both civil and criminal cases among the Indians.
In 1698, the Company also acquired zaminadri rights at SUtanati and Govindpur.
6. Admirality Courts
The Charter granted in the year of 1683 and authorised the establishment of Courts of Admirality in the three Presidency cities. The Court held the power to apply martial law in whole India. In 1685 it was suggested that civil appeals from the Admirality Court appeals should pass to the Deputy Governor and Council. In 1656, the Madras Court ceased operation in favour of the Court of Admirality. Cases could also be accepted by the latter Court from the Madras Mayor’s Court.
7. Court of Administration:
In 1717, the Governor-in-Council of Bombay announced establishment of a new Court of administration which possessed wide civil and criminal jurisdiction. Appeal could be made to the Governor-in-Council. Justice was delivered from the bench.
8. Re-establishment of Mayor’s Court:
In 1726 the Crown granted Letters of Patent for re-establishment of Mayor’s Courts, which practised English common and statute law in Madras, Calcutta and Bombay.. They possessed jurisdiction in civil cases with appeal to the Governor-in-Council and later to the Privy Council in case of the value exceed 4000 rupees.
9. Introduction of Judicial & Revenue Administration:
In 1772 Governor of Bengal directed the Patna and Murshidabad councils to introduce judicial and revenue administration.The first British Indian Law Code, in Bengal, Bihar and Orissa, was introduced and Faujdari adalat and Dewani adalat were introduced to deal kin civil and criminal matters. Besides that the Sadar and Dewani adalat,a s court of appeal in civil cases, were established in Calcutta.
10. Establishment of Criminal Justice:
The East India Company taking control of Criminal Justice System in all parts of India (Except Bombay) under the Company control Dewany (money) management which was offered to the Company by the Mughal ruler; zamindar who collected revenue, used judicial power and came under the control of the British.
11. Establishment of High Courts in Calcutta, Bombay and Madras:
The Government introduced important reforms in the judicial system. Their recommendations were accepted the Indian High Courts Act authorized the establishment of High Courts in Calcutta, Bombay and Madras in place of old Supreme Court, Sadar Fojudari Adalat and the Sadar Dewani adalat were abolished after 90years.
12. Federal Court:
In 1937 Federal Court was established by the Crown. The Chief Justice and Judges of Federal Court were to be appointed by the Crown and were to hold office till the age of 65. The Privy Council interprets the Constitution. The Federal Court declared the ‘defence of India rules’ as ultra vires proving its independent and impartial authority, indeed was a turning point the judicial development in India.
Conclusion: The critical period from 1940 to 1947 took a break on the issue of independence, which finally culminated in the formation of two independent states in the Sub-Continent, viz India and Pakistan. With the creation of these two states the British Rule in India formally came to an end.