1. Indian Legal and Constitutional
History
Dr. Saurabh Chaturvedi

2. East India Company
The 1st East India Company was incorporated in
England under a Charter granted by Queen
Elizabeth on 31st Dec 1600 AD, in the name of
“ The Governor and Company of Merchants of London
trading into East Indies”
The members of the Company had to elect 24
members annually to form Court of Directors and a
Governor, eligible to re-elect.
Having exclusive rights to trade all parts of Asia, Africa
and America except Europe.
Initially the charter was granted for 15 years
renewable to 15 more years.

3. East India Company
• The Company was authorized to make legislations including civil and
criminal laws, Orders and the Constitution applicable on its people( English)
for
• good governance
• Advancement and continuance of its trade and traffic
The Company was empowered to impose Punishments by way of
Imprisonment ,Fine & forfeiture of goods/vessles.
King’s Commission
Issuance of Royal Commission by Queen Elizabeth (1601) and empowerment
of Commander-in-Chief to award capital punishment to
wrongdoers(Subject to the approval of a Jury constituted by 12 members of
Company itself)
Era of James I,
Empowerment of Company to grant Royal Commission(1615)
In 1623 granted the Company’s Presidents/Chief Officers the same powers
applicable in their Company’s establishment/port or land

4. East India Company
Issues
1. The English law could germ out of which Anglo-
Indian codes were ultimately developed.
2. The Company was armed with adequate authority
to enforce discipline amongst its servants both on
the high seas and on the Indian soil

5. Bombay 1684-1690
• Bombay 2nd Statge
• Establishment of Admiralty Court(1684) having
Jurisdiction on Civil, Criminal and Maritime matters
• Appointment of Dr. John St. John as Advocate General
• Conflict in between The Governor Child and Dr. John on
various issues
• Reduction of Jurisdiction of Admiralty Court to
maritime matters only
• Appointment of Vaux as a Judge in a new Court to look
into Civil and Criminal matters
• Conflict in Jurisdictional issue between the Courts of
Vaux and Dr. John
• Conflict between Executive and Judiciary

6. Bombay 1684-1690
• Dismissal of Dr. John
Issues
• Overlapping powers of Executive & Judiciary
• Attitude problem of Legal professionals
• Intolerance of Judicial independence
• Judge made laws exceeding English laws n
interpreting differently
• End of Bombay Judicial System by attack of Moghul
Admiral Siddi Yakub in 1690-1718 as dark period

7. Bombay 1718-1726
3rd Stage
• Establishment of a new Judicial system after 30
years in 1718
• Appointment of a Chief Justice and 9 other Judges
• Five British n 4 India Judges from
Hindu, Muslim, Portuguese Christian + Parsis, one
each.
• Jurisdiction to judge all cases of
Civil, Criminal, Military and Testamentary
• Work as Registrar of immovable Property

8. Bombay 1718-1726
• No equal status to Indian Judges
• Due regard to caste custom and local traditions
along with English laws
• Appeal to Governor and Council
• Inexpensive and quick award based on common
sense
• Stringent punishment to criminal and Debtors
• Rama Kamati’s Case

9. Calcutta 1690-1726
The Company secured Zamindari of 3 adjacent villages
,Sutanti, Calcutta and Govindpur@ 1195 Rs. P.a. from
Prince Azmaish shah( Grand Son of Aurangzeb, then
Subedar of Bangal)
In 1668 a fortified factory was constructed as Fort William
On the bank of river Hugli(Sutanti)a few Englishmen
landed on 24th Aug.1690,under the leadership of James
Charnock.
Acquisition of zamindari was a significant event for
Company through it company secured a legal and
constitutional status within Moghul administrative
machinery.
Company became entitled to exercise all those functions
and powers within the zamindari territory.

10. Calcutta 1690-1726
Dec.1699 Calcutta became Presidency.
A Governor(President) and a Council was appointed
to administer the settlement.
English Judicial System in Calcutta
The zamindari functions of the Company, within the
settlement of Calcutta, were entrusted to an English
Officer called Collector, who used to be a member
of Governor’s Council
Collector had judicial powers in all Civil, Criminal and
Revenue cases pertaining to the Indian inhabitants

11. Calcutta 1690-1726
Besides this a parallel Court of Zamindar was also in
existence and dealing with civil cases of local Indian
people according to customs and usage and
discretion for which appeals lay to the Governor
and Council.
Evaluation
Parallel justice administration system of Nawab &
Company and approval before capital punishment
Lack of impartial administration of justice
Concentration of extensive Power in the hands of
Collector

12. Charter of 1726
The Charter of 1726 was a big advancement of Company’s
establishment in India which was requested to fetch
more powers from Crown.
King George I issued a fresh charter to Company where all
three Presidency were brought under a uniform Judicial
system.
Establishment of Civil and Criminal Courts in each
Presidency deriving authority from the Crown
Designated as Royal Courts these Courts were equivalent
to English Courts having formal, regular and definite
base
An appeal from India could be made directly to Privy
Council

13. Charter of 1726
The Charter established a bridge in British and Indian
legal system
It became a channel through which British Crown
could directly apply their legal interpretations and
applications
Where ever Indian laws were absent British laws were
guiding them to find the way

14. Charter of 1726
Provisions
1. Establishment of separate Corporation in each
Presidency consisting a Mayor and 9 Aldermen.
The First Mayor is appointed by the Crown for one
year after retirement the Mayor remains an
Alderman only.
Two Alderman are appointed from the local jagirdar
and rest are natural born subjects of the company.
Aldermen is appointed for life but could be removed
by the Governor and Council subject to appeal to
King-in-Council in England

15. Charter of 1726
2. Judicial System
In each Presidency a Mayor’s Court was established
consisting a Mayor and two senior Aldermen
The Court had jurisdiction only to the Civil Matters along
with Testamentary and Court of Record for contempt.
An appeal could be made to the King-in-Council
Sheriff
He was responsible for implementation of Mayor’s
Court’s directions including summons, seizure of
property ,execution of warrant etc, having jurisdiction
over the entire Presidency and 10 miles around.
Appointed by Governor for one year duration

16. Charter of 1726
Criminal Jurisdiction
Vested with the Governor and 5 senior members of
the Council each was a Justice of the Peace.
Powers to arrest like police and punish for petty
offences
Grand and Petty jury to sit 4 times in one year and to
look into serious crimes
All technical forms and procedures and manners of
English law were introduced
Three justices of the Peace were collectively forming
Court of Record(To hear and Determine)

17. Charter of 1726
Effects
The post charter period was not smooth arising
conflicts between Governor and The Mayor’s Court
Neither Law nor Justice was accorded
Mayor’s Court became autonomous and the Governor
sought to interfere with the functioning of the
Court.
No clarity on personal laws and religious matters
Conflict in between Court and The Council

18. The Adalat System
Background
Calcutta was captured by Nawab Siraz-ud-daula 1756
Clive recaptured Calcutta under guidance of Clive from Madras
1757
Battle of Plassy in between Nawab and company (1757) ,who
wins and projects Mir Jaafer as Nawab .
Mir Jaafar was succeeded by his minor son Nijam-ud-daula.
With every change in Bengal Company increased in power and
influence.
The battle of Buxar(1764) gave path to Company to get Diwani
of Bangal, Bihar and Orissa from Moghul Emperor Shah Alam
The Company remained actual power keeping Nawab as a
puppet.

19. The Adalat System
The Company kept Nawab for two reasons
1. If Company assumes direct administration the
Crown would interfere due to English Constitutional
Law provision that no British subject can acquire
Sovereignty over any territory for himself. It must
vest in the Crown so the Parliament becomes
entitled to legislate for the territory.
2. The possibility of French and Portuguese
interference which could create international
problem

20. The Adalat System
The Company agreed to pay Rs 26 Lakh to the
Emperor and to retain the rest for their own use.
The power of Diwani gave a big status and legitimacy
to the Company.
It used to have to senior officers Nawab/Nizam and
Diwan, appointed by the Emperor in India.
The Nizam was the head of Military, Maintenance of
Law & Order and Administration of Criminal Justice
system.
Diwan was responsible for collection of Civil &
Revenue matters and also to manage funds for the
Govt.

21. The Adalat System
The company wanted to have all control in its hand by
merging both Nizam and Diwan powers in favor of
Company.
Through a contract Nawab(who was a minor) surrendered
to company all powers of Diwani and Nizam both and
accepted a sum of 53 lakh p.a. for maintenance of
himself and criminal judicature.
Thus Company acquired all legitimated powers in its hand
and became responsible for administration of Civil
Justice and revenue Collection.
Company appointed two Naib nazim to control the
working of machinery at Mushirdabad and Patna under
the supervision of two English Officers.

22. The Adalat System
Effects
1. The system was very faulty due to lack of
accountability among English officers and
helplessness of Indian officers due to lack of power
against English People.
2. Private trade by company officers including
Governor and his council members

23. Warren Hastings and Judicial Plan of 1772
Warren Hastings’s administrative plan of 1772 divided the whole
Bengal into smaller districts.
In each district an English servant was appointed as Collector
responsible for collection of revenue.
For Judicial plan, he established the following..
1. Mofussil Diwani Adalat..was established in each district with
Collector as a Judge, authorized to decide all civil cases like
Real and personal
Property, Inheritance, marriage, caste, bad debts, disputed
accounts, contracts, partnerships and Renting arrangement.
For Inheritance, marriage,or caste related issues KORAN or
SHASTRAS were to be taken into consideration as per Kazi or
Pandit expound based on religion and interpretation.

24. Warren Hastings and Judicial Plan of 1772
Mofussil Fozdari Adalat
It was supervised by the Collector,who had to see the
witnesses and to render judgments
Crimes were heard by the Kazi and Moulvis who used to
give Fatwas against Crimes and Criminals.
Death sentence or forfeiture of property were to be
submitted to Sadar Nizamat Adalat for approval.
Sadar Adalats
Over Mufussil Diwani and Fauzdari two superior
courts, Sadar Diwani (Consisting Governor and Cuncil)
and Sadar Nizamat Adalat (Consisting a Daroga-i-Adalat
to assist Chief Kazi,Chief Mufti and Three Molvies)were
established at Calcutta (1773)
Small Cause Court

25. Warren Hastings and Judicial Plan of 1772
Appraisal of the Plan
A credible achievement
Impartial and inexpensive justice
Establishment of Anglo-Indian Judicial System
Replacement of Commission to Court Fees going to
the Govt. not to judge
Abolition of Judicial powers of Zamindars
Division of power in between Nizam and Diwan
Separate Courts of civil and Criminal courts
Concentration of Excessive power in the hands of
Governor

26. Warren Hastings and Judicial Plan of 1772
Plan of 1774
The collectors were recalled from the Districts and an
Indian officer, called Diwan, was appointed at the
place of Collector.
Responsible for collection of revenue and also to act
as Judge in the mofussil Diwani Adalat.
Division of entire province into six divisions having
headquarter at Calcutta.
A provincial council consisting 4-5 English
servents,was appointed to supervise the collection
of revenue and to hear appeals

27. The Supreme Court
Supreme Court at Calcutta
• The Regulating Act created a Supreme Court at Calcutta
in 1773.
• Besides managing internal management and
administration of East India Company, it re-organised
the structure of the Calcutta Government .
• Appointment of 1st Governor General and a Council of 4
English persons vested with whole power of Civil and
Military Govt. For a duration of 5 years, he could be
removed by the King on the recommendations of
Company’s Directors
• It includes Ordering, Management and Government of
all territorial acquisition and revenues in the kingdom
of Bangal, Bihar and Orissa.

28. The Supreme Court
Effects
• Each Presidency was independent of each other and
had a direct relation with the Court of Directors in
England
• Madras and Bombay Presidencies were brought
under direct supervision of Calcutta Presidency in
matters of Peace and War in necessity
• The subordinate Presidencies were required to
transmit regularly to the Governor general
regarding, Govt. revenue, or interests of the
company

29. The Supreme Court
A Supreme Court was established at Calcutta by King
George III on 26 March 1774 through a Royal Charter
It was having 3 judges(having a qualification of a Barrister
of minimum 5 yrs experience) appointed by the crown
for a term extending up to the pleasure of the Crown.
It had jurisdiction on Civil. Criminal & Admiralty cases
The Court was empowered to hear civil cases against the
Company & The Corporation of Calcutta also.
It had jurisdiction only on the persons of Company or His
Majesty’s subject
An appeal could be made in King in Council

30. Trial of Raja Nand Kumar
Conflict between Governor General and the Council
Charges against Warren Hastings by Raja Nand Kumar
Charges by Mohan Prasad against Raja Nand Kumar
Jury found him guilty under British Act of 1728 and sentenced
death
CJ Impay was tried for impeachment for committing Judicial
murder
Issues
1. Whether the trial was impartial
2. Whether committing forgery suited to death sentence in the
prevailing conditions of calcutta?
3. Whether British Criminal Laws of 1728 were applicable in
Calcutta having retrospective effect
4. Why Raja was not allowed to make an appeal to Privy
Council

31. Patna Case
Succession by a Muslim widow
Shahbaz beg Khan(died 1776),Bahadur Beg(Nephew) and
Nadirah Begum(Widow)
Issues
A gift deed was executed in favor of Nadirah by Shahbaz
Bahadur Beg claimed the property on the basis of
adopted son so filed a case against Begum in Patna
Provincial Council.
The case was delegated for dealing to Mufti and Kazi for
(A) Making an inventory of the entire property
(B) Sealing it to maintain status quo

32. Patna Case
All proceeding in Patna Council were ex parte without notice to
Begum.
No witness was examined on oath and some could not present
themselves in person
Begum’s plea of gift alleged as forged
Outcome
1. Begum’s house was sealed and only one room was left open
2. She was given only 1/4th part of her deceased husband and
rest 3/4th was handed over to Bahadur Beg on behalf of his
father(Shahbaz’s Brother)..as per Hanafi Muslim School
She approached to Supreme Court and filed an action against
Bahadur Beg, Mufti and the Kazi for assault, false
imprisonment, breaking and entering her house etc and
asked for damages of 6 lakh

33. Patna Case
Supreme Court issued a writ of Capias, for arrestment
of Kazi, Mufti and Bahadur Beg.
They were brought to Calcutta and asked to furnish a
bail of Rs 4,00,000,on failing put in the prison.
Issues
1. Whether the Law officers could be empowered by
the Council, which was also a Court, by delegation
of its powers to perform judicial actions by
executives and to decide the questions of fact and
law.
2. Whether the Supreme Court at Calcutta was
having jurisdiction over native Indian people

34. Patna Case
The Supreme Court held that the procedure and practice
adopted by law officers was illegal on the following
grounds
1. The power to administer justice was vested in Patna
Council.
2. The Council left the whole case to Law officers who
exercised the reflecting powers of the Council
3. The Council was not authorized to delegate its powers
The declared the gift deed genuine and said that Begum
is entitled for the entire property left by her husband
and also awarded Rs 3,00,000 for damages

35. Cossijurah Case
Background
1. Mr Kashinath landed a large sum to the Zamindar
of Cosijurah n did not return the same even after
repeated remainders.
2. Kashinath brought a case in Supreme Court in 1779
against the Zamindar.
3. Court issued a Writ of Capias warranting arrest of
the Zamindar,who became underground and the
WRIT remained unexecuted.
4. The Govt. sought an opinion from Advocate
general,who suggested that the Zamindars etc. do
not fall within the jurisdiction of Supreme Court.

36. Cossijurah Case
5. The Zamindar of Cossijurah was suggested to not to
appear,plead or do any such act which shows the
jurisdiction of Court on him.
The Advocate General suggested the Govt to not to assist
the Court and leave the entire execution on the Court
itself.
The Govt. did the same and gave a notice to all Zamindars
and land lords informing that they do not fall within the
jurisdiction of the Supreme Court.
On the other hand the Supreme Court issued another
Writ of Sequestration for forfeiture of the property of
the Zamindar and to force him to appear before the
Court and also sent Sheriff’s force to execute the writ.

37. Cossijurah Case
The Govt. sent an another force to stop the Sheriff’s
force, which arrested the Court’s force and brought
them to Calcutta.
Kashinath brought an action against the Governor
General and members of the Council individually for
traspass, who initially appeared in Court but later
withdrew themselves as their action was in official
capacity as they had done nothing in personal
capacity and were also exempted from criminal
proceedings in advancement of their official work

38. Development of Criminal Law 1772-1886
When the company assumed responsibility for
administrating Bengal, Bihar and Orissa the Muslim
criminal law was very well entrenched in that territory.
The British administrators did not immediately disturbed
the status quo’ and allowed this law to continue.
The law however had a number of glaring defects. Many
of its principles were not in accord with the British
notion of justice, common sense and good government
The Muslim criminal law formally remained in operation
in the Mofussil of Bengal, Bihar and Orissa for over 100
years after the company had taken over the
administration.

39. Development of Criminal Law 1772-1886
The traditional Muslim criminal law broadly classified
crimes under three heads:
• Crimes against god(apostasy, drinking intoxicating
liquors, adultery, etc.)
• Crimes against sovereign( theft, robbery & robbery
with murder)
• Crimes against private individuals( murder, rape etc.)
The Muslim criminal law arranged punishments for
various offences into four categories,
kisa or retaliation meant life for life, it was applied on
willful killing and grave hurt. It was regarded as a right
of a man and gave to the injured party or his heirs a
right to inflict a like injury on the wrong doer as he had
inflicted on his victim.

40. Development of Criminal Law 1772-1886
DIYA- Diya meant blood money. In certain cases, like
unintentional injuries, diya was awarded to the
victim on a fixed scale.
In cases where kisa was available, it could be
exchanged with diya, or blood money.
The injured person or his heir could accept diya or
kisa as he liked.
In case of murder, the heir of the victim could accept
diya and forgo his right to claim death on the
murderer.
In cases of intentional wounding or maiming, the
victim could accept diya in lieu of kisa

41. Development of Criminal Law 1772-1886
HADD- meant boundary or limit. In criminal law, it meant
specific penalties for specific offences.
The underlying idea was to prescribe, define and fix the
nature, quantity and quality of punishments for certain
particular offences which the society regarded as anti-
social or anti-religious
The judge had no discretion in the matter, the
punishments prescribed under crimes could not be
varied, increased or decreased.
The prescribed punishments for certain offences were: for
zina or illicit intercourse, death by stoning,for
theft, amputation of limbs like the right hand or the left
foot; for falsely accusing married woman of
adultery, eight stripes. Etc.

42. Development of Criminal Law 1772-1886
TAZEER- Tazeer meant discretionary punishments.
These punishments were inflicted at the discretion
of the judge as there were no fixed rules to
prescribe such punishments.
Status of Witness
Willful murder or Unintentional death
Pattern of punishments

43. Development of Criminal Law 1772-1886
Issues
1. Law was very uncertain
2. Differences of opinion among the Muslim jurists
3. Muslim law of crimes appears to be very severe in
punishments
4. Muslim law and theory was based on such relations of
State and Social relations which were obsolete from
the west
5. Doctrine of Tazeer gave unwarranted power in the
hands of Judges
6. Fatwa were appeared inconsistent with the view of
enlightened Europeans

44. Development of Criminal Law 1772-1886
In 1773, Warren Hasting formulated certain proposals for
its modification:-
• He suggested that the intention and not the nature of
the weapon used be made the test of willful murder. If
the intention of murderer be clearly proved, no
distinction should be made with respect to the weapon
by which the crime was perpetrated. The murderer
should suffer death and the fine be remitted.
• He suggested abolition of the privilege granted by the
mohammedan law to the sons or the nearest of kin to
pardon the murderers of their parents or kinsmen
.According to him, it was a “law of barbarous
construction, and contrary to the first principle of civil
society ,by which the state acquires an interest in every
member which composes it , and right in his security”.

45. Development of Criminal Law 1772-1886
• He advocated abolition of the rule which required the
children, or the nearest of kin of the deceased, to
execute the sentence passed on the murderers of their
parents or kinsmen.
• He suggested that the fine imposed for manslaughter
should be proportionate not only to the nature of the
crime, but both to the nature and the degree of the
crime and to the substance and means of the of the
criminal.
• Warren Hasting submitted his proposals to the council
for consideration and approval. But the council took no
decision thereon as it regarded it a very delicate matter
to change the established law