“ Editor’s Note: The judicial system of a country needs to be efficient in order to ensure effective overall administration. However, when the British came to the country, the judicial setup in India was in dire need of reform as it suffered from defects like lack of uniform laws learned people to adjudicate disputes and administer justice. They saw these defects and sought to establish a system that could cater to these. Warren Hastings and Lord Cornwallis introduced their Judicial Plans, beginning in 1772. These plans established a hierarchy of courts and designated officials who were to decide matters, taking help from advisors who were well-versed with the parties’ personal laws. This system formed the basic framework for the system of courts that we have today. Law Commissions convened during the period helped enormously in laying down uniform laws. The principles of justice, equity and good conscience, also made their way into the legal system. Though the British may have introduced these changes for their own administrative convenience, yet these changes contributed significantly to the modern Indian legal system.”
Prior to the establishment of a proper system regarding the administration of justice in India, there was an extremely decadent system in place whose very existence itself was a grave injustice. People could neither access judicial institutions easily, nor could they depend on these to give them a fair and equitable judgement. In addition to that, there was not much proportionality between the offence committed and punishment awarded (Retributional Justice was gravely lacking, and was one of the many reasons for people to grow disillusioned with the legal system in place.)
Furthermore, corruption was rampant, and the local law officers (Kazis, Mufti’s and the Maulavis) were very prone to deciding cases in favour of people who could pay for the judgements to go in their favour (which entirely defeated the function of a court’s existence, violating the principle of natural justice and sending a highly incorrect message to the public). The Mughal Empire, when it was at the height of its power, had employed two officers in order to conduct administration in the provinces also known as Subhah’s, namely the Nawab and the Diwan. The Nawab handled matters of military and criminal justice and law order; whilst the Diwan. Handled mattes with regard to revenue collection and administration of civil justice and revenue cases or disputes.[i]
But even they were extremely inefficient in carrying out their judicial responsibilities. One can fairly deduce from their modus operandi that they were highly disinterested in the performance of these functions (their lack of efficiency can also be attributed to, too many functions in their hands leading to a scenario where they over worked). Each would delegate their responsibility to their assistants (Daroga-adalat-al-alia as the assistant for the Nawab, and the Daroga-i-adalat, for the Diwan). But they were again very corrupt due to acceptance of bribes and money in order to adjudicate matters.
Once the East India Company attained the right of Diwani (which gave them the powers of the Diwan-to adjudicate civil and revenue matters and collect revenue, keeping any surplus after collection for themselves) for an annual sum of Rs. 26 Lakhs, they brought in Lord Hastings (after the EEIC[ii] completely failed in carrying out its duties under Diwani) to turn things around. They needed him to create a uniform system, a system that would be people friendly and serve justice according to the natural principles of justice. Furthermore they needed a system, which was simple, and efficient in order to serve the following two purposes:
This was the job entrusted to Warren Hastings, when he was the Governor of Calcutta. He was asked by the Court of Directors to employ methods that would reduce the oppression of the Zamindars and other officials who were over-using their power for all the wrong reasons, thereby causing undue pain and harm to the local peasants. It must be noted that the British were extremely prudent in realising the unmistakable link between revenue and civil matters. Having this thought in mind, helped them ensure that not only their aims in India were reached but more importantly the interests of the people were neither neglected nor forgotten. These were the conditions to which Warren Hastings was introduced and given the task of devising a new legal system, which ultimately came to be known as the Adalat System.
Warren Hastings (1732-1818) was the first governor-general of British India. Initially he was employed (1750) as a clerk by the East India Company, but he soon became manager of a trading post in Bengal. When Calcutta was captured (1756) by Siraj-ud-Daula, Hastings was taken captive . But he was soon released. After the British recaptured the city in 1757, he was made British resident at Murshidabad. His good service and knowledge of the people’s condition there brought appointment to the Calcutta council (1761), but he returned to England (1764) disgusted with administrative corruption in Bengal.[iii]
Warren Hastings came into a situation of turmoil and disarray with respect to judicial institutions and their administering of justice. The institutions that existed were corrupt and inefficient. Moreover, they were inaccessible by the common masses who, were forced to incur a great expense and travel great distances in order to attain justice. This was the situation that Warren Hastings was given the mission of turning around. His attempts to reform the judicial system were categorised in two plans:
His administrative reforms included re-structuring the area, Districts being the smallest unit. Now the areas of Bengal, Bihar and Orissa were all divided into districts with an English Company servant in each district behaving as the Collector of that district for the collection of revenues. The judicial scheme was integrated with this revenue collection method.
There was a basic Small Cause Adalat, set up in order deal with petty cases or disputes that came up, and this was up to the value of Rs. 10. Within each district or Pergunnah, the head farmer (the eldest farmer of the district) was given the duty of adjudicating and delivering justice for these small disputes. It must be noted here that, in such a system where the person administering justice was chosen from within a small community, there was an in-built system of checks-and-balances. That is, there was less likelihood of the head farmer to act arbitrarily as he had to live amongst the people he is administering justice to. Hence any act or omission on his part was closely observed and he could be brought to task.
Above this Small causes Adalat a court known as the Mofussil Diwani Adalat was established in each of the above districts. It was presided over by the Collector. The decisions of the court up to the monetary value of Rs. 500 were final. This court was given the responsibility of handling all civil cases. It handled matters such as property, marriage disputes, inheritance related disputes, debts, contracts, settling accounts. However, this court did not handle case of succession to Zamindari and talukdari property. This specific function was dealt with by the Governor General and Council, only; no one else was allowed this function[iv]
With regards to what law would be followed, Hastings decided that Muslim law would be followed for the Muslims, Hindu law for the Hindus. More specifically he stated that the Koran would be followed for Muslims and the Shastras would followed for the Hindus. Now in order to assist the Englishmen who acted as the collectors in administering the respective laws (as they were unaware of the local laws being Englishmen who were barely acquainted with English law itself as they were traders by profession and not lawyers), there were the local law officers instituted to aid them. These law officers were the Kazis for the Muslims, and the Pundits for the Hindus.
At the same level the Mofussil Fozdari Adalat or Mofussil Nizamat Adalat was set up. This court was to deal with the administration of Criminal Justice. The Collector was expected to undertake a sort of general supervision of the Adalat, seeing that equitable justice was administered, sessions of the court were held regularly and that the judgements rendered were impartial and not unfair. But over and above this, the Muslim law officers, the Kazis, Muftis, and Maulavis were to interpret and apply Mohammedan Law to the cases at hand. They were to pronounce the futwa[v] and give the judgement.
An important point to note regarding this separation of courts handling criminal and civil cases is that it certainly maximized the efficiency of the court and aided speedy rendering of justice. Furthermore it checked too much power being vested in one judicial institution itself.
Above these three courts were Sadar Diwani Adalat and Sadar Nizamat Adalat. The Sadar Diwani Adalat heard appeals from the Mofussil Diwani Adalat of cases valuing over Rs. 500. It was presided over by the Governor and the members of the council. The court fees charged was about 5% of the value of the case for appeal, and the appeal had to be made within two months of the decision being given by the MDA[vi]
The Sadar Nizamat Adalat’s main function was to:
The East India Company had only the rights of Diwani and therefore their role in criminal judicature was minimal. It was restricted to the extent of the Governor and Council exercising supervisory control over the court’s functioning. In truth, the British had no right to administer criminal justice as that still came under the purview of the Nizam and his assistant.
There was no need for the company to even worry about it. But due to the abhorrent nature of the crimes committed and the lack of interest in addressing these grave injustices, the British took this responsibility as well. The Nawab at the time was a minor, and he was more than happy to hand over this function to the British. All the above courts were to be open courts to promote free and fair justice. They were to maintain proper records and registers, which were to be given to the Sadar Adalats. Also special consideration was given to tackling the problem of dacoity. ‘Any dacoit found could be executed in their villages, which shall be fined and their families made slaves to the state’[viii] Though this was harsh Hastings believed this would be the best way to tackle the problem.
The most striking feature of this plan was that of the allowance of separate laws for the Hindus and Muslims. There was also an Office of the Remembrancer; who had to compile data of all cases at all levels in the given area where he sat ( each district). He was under the direct supervision of the Governor-General, and he possessed records of all cases at all levels, including the lowest of levels. If the Remembrancer found any court not functioning properly or a case not being decided fairly, he sent a report to the Governor-General who then scrutinized the report and the case/court. If any discrepancy was found he could ask the Nawab Naib Nazim to ask the court to function properly, or tell the court to re-judge the case correctly
But one of the pitfalls of the plan was that there was far too much power vested in the hands of the Collector, and this was a bad thing as the collector could misuse his powers, which would in turn defeat the purpose of justice. In order to tackle the problem of corruption amongst the native law officers, Warren Hastings ensured that officers were given a proper regular salary. This was to ensure a good level of objectivity in delivering judgements that are fair and unbiased. Which is what justice should be.
Furthermore there was a pre-set court fee amount, which was set by the government and not the judge himself so as to ensure easily accessible justice and to prevent corruption even amongst the judges. Also it was to ensure that the judges charge reasonable amounts and not exorbitant rates. Another problem regarding this plan was that of the scarcity of adalats, making justice difficult to access for the people who needed it. Taking these issues in mind, Warren Hastings sought to improve this plan further and did so with his next set of judicial reform.
First, Warren Hastings sought to tackle the problem of paucity of the adalats to which the people could approach. He did so by dividing the districts of Calcutta, Orissa and Bihar into six divisions. The Division Headquarters of each division included: Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and Patna. Each of these divisions thus consisted of several districts. From these districts the collector was removed and a new post called the Diwan or Amil was created. This Amil was given the functions of:
Now in each division, a Provincial Council was instituted to hear appeals from the MDA and also to supervise collection of revenue. This provincial council comprised of four or five EEIC[x] servants. If there was a case valued above Rs 1000, the case could be appealed from the Provincial Council to the Sadar Diwani Adalat. This provincial council also exercised the original jurisdiction to hear cases that arise within the limits of the town where it was seated. So not only was it a link between the MDA and SDA by exercising appellate jurisdiction, but it also had the power to be a court of first instance.
Another change made in this plan was that any case in the MDA presided over by the Amil could be appealed to the Provincial Council; there was no more the pecuniary limit of the case being above Rs. 500 to move from the MDA to the SDA[xi]
Another major reform of this plan was that of the signing of the death warrants. Earlier the Nizam had to sign the warrant (according to the plan of 1772). Due to the time taken to get this warrant signed and the fact that the Nizam rarely attended his work, Warren Hastings managed to convince the Nizam to delegate this function of signing the warrant to his Deputy, the Daroga-Adalat-Al-Alia, and to further allow the governor, to supervise the functioning of the Daroga.
This judicial plan however, was not without its flaws. Hastings himself foretold the corruption and the internal destruction that would be created due to the existence of the Provincial Council. He reasoned that the collector according to the plan of 1772 was a petty officer, who if he committed any such fraudulent practices could be checked by his seniors. But the provincial council was made up of fairly senior officers of the EIC, and little could be said or done to stop them from misusing their powers.[xii]
Lord Cornwallis was the first Governor-General under the new Regulating Act of 1773 (which also allowed the creation of the Supreme Court in Calcutta). During his tenure he was able to balance the interests of the EEIC as well as the interests of the people. He didn’t just focus on the EEIC’s goals, or the repayment of the loan, which the EEIC had taken from the crown. ‘He was able to defy the mercenary interests of the East India Company when they conflicted with state policy’[xiii] His tenure extended from 1786-1793, and this period was exceptionally productive in terms of the number of reforms brought out to better the judicial system.
Lord Cornwallis, introduced reforms in all sphere’s possible, in civil and criminal judicature, in re-organising the districts and introducing for the first time the principle of administration according to the law[xiv]. His contributions to the existing judicial system can broadly be classified under the following three judicial plans:
The main area that was emphasized during this period was economy. This was because the East India Company was in the process of repaying a loan to the crown. So any money that could be used for this was eagerly sought and a lot of cost cutting measures were taken. The plan of 1787 was introduced through two regulations.
Lord Cornwallis wanted to achieve fair justice. The only way in his opinion to do this was to increase the salaries of the collectors by further reducing the number of districts from 36 to 23. Another stipulation was that each of these districts would have a collector. This Collector would be in charge of collecting revenue and administering justice. He would be a servant of the East India Company. There was a separate tribunal created to handle any revenue related disputes called the Mal Adalat and the Collector presided over this court. Furthermore he would also preside over the Mofussil Diwani Adalat, for all the civil matters that arose.
With regard to criminal judicature, he would function as the Magistrate (the person who took cognisance of the criminal affairs), in order to issue warrants for people’s arrest in order to be able to send them to the Mofussil Nizamat Adalat. But despite this, the collector could not sit for all the cases all the time. The collector was given the allowance of meting out punishments of up to 15 days imprisonment or 15 strokes or both.
With regard to the Sadar Diwani Adalat, the Governor-General and council presided over it. The Chief Kazi, Chief Mufti and 2 Maulavis for cases, where Muslim law was to be applied, aided them. And where cases where Hindu law was to be applied, the Governor-General and Council were to be aided by Pundits.
A new office of the Registrar was created for petty civil cases for cases less than Rs. 200. But the registrar’s judgement was given only on the approval of the Collector. The Supreme Court of Calcutta dealt with British nationals directly, but if there was a criminal case against the Britisher, a complaint could be lodged with the magistrate. The magistrate would then issue a warrant for his arrest, after which he would verify the existence of a valid claim against the Britisher.
If the claim was valid, the person and the injured party along with all the evidence were sent to the Supreme Court at Calcutta. But if no such case was there against the Britisher, the case was dismissed then and there. Other Europeans were equated with the Indian natives, and were therefore denied direct access to the Supreme Court in Calcutta. They had to go through the normal court system or hierarchy followed by the Indians.
This plan was highly inefficient as it was set up in such a manner that it was bound to fail. The collector was vested with too much power, so much so that he was over-worked. Secondly the chances of him misusing his power were very high. Another problem was that of the overlapping criminal and civil judicature.
This plan aimed at changing the system of courts followed and the laws implemented in the criminal justice system. Also a new hierarchy of courts was established. It was a Three-Limbs type of arrangement. At the lowest level was the Magistrate in the districts. Above this was the Court of Circuit and then finally the Sadar Nizamat Adalat. The Governor-General and Council presided over the SDA aided by Muslim law officers (Kazis and Muftis). It was to meet once a week. The trials referred to the Sadar Adalat were to be reviewed by the Muslim law officers who would provide the fatwa, which was then presented to the Sadar Nizamat Adalat for the final sentence.
Regarding the Court of Circuit, it was composed of two company servants, and was established in every division. The court was not a stationary court but a court that moved from district to district, bringing justice to the people. There were two-goal deliveries annually-from the 1 st March and 1 st October. The court was to visit each district twice a year to dispose of criminal cases. The Muslim law officers could now be removed only by the Governor General and council due to misconduct (in order to give security of tenure for them to ensure their loyalty and efficiency).
The collector in each district still acted as magistrate, but now he was to arrest the accused person and then hold an inquiry into the circumstances of the case. Should any discrepancy be there, and the accused person was really guilty, the collector could keep this person in his custody, pending the arrival of the Court of Circuit. (or release him on bail) The collector had to keep all the information and evidence ready for the court of circuit to give the judgement. The office of the Remembrancer was abolished.
This plan entailed a complete restructuring of the judicial system. It brought in more accountability into the system. Also it marked a great reduction in the number of courts. Let us take a close look at the points stipulated under this plan:
The judicial system as we know it today, did not unexpectedly appear post independence from the British regime.[xvii] It evolved largely due to the impetus and working of the British administration, whose motives for laying the foundation for our legal system were admittedly not for our own management, but for their own ease where justice and law and order were concerned. One of the primary concerns for the British rulers was that there were semantic and cultural differences in this country that were far beyond their understanding. Each religion had its own peculiar way for dealing with the same kind of offences, ranging from very severe to very lenient. Women and children were rarely even protected by these ways. There was also no standard per say for:
It became clear, very early on, that because of India’s religious and cultural diversity, the British had a very complicated task where deciding which law to apply and to whom. They had to create a system that would ensure justice, while ensuring that there is no offence is caused to the customs and religious sentiments of the party to the dispute, or his/her community. Lord Hastings’ plans were very successful in this regard as they maintained the societal equilibrium desired by the British; it became easier to administer Hindu law to Hindus, and Muslim law to Muslims, and thus ensured that India could be ruled smoothly without any major upset.
This was not enough to tackle the defects of our highly unorganised judicial system, where justice was usually served by the King or the local village head or in most cases, the religious leader. In the years 1780 and 1872, the doctrine of equity, good conscience and justice was added to the Judicial systems of Bombay, Madras and Punjab respectively. Later, via the Central Provinces Laws Act, 1875, as under Section 6, this doctrine was made the standard for adjudication of disputes in all provinces of the British Indian empire, whereby Judges would use their reasoning and logic and moral conscience along with the relevant personal law (Hindu or Muslim or the like) in deciding the dispute.[xviii] Where the cases in India were appealed and would reach the English Courts, such as the Privy Council, they too were to pay heed to Indian customs and traditions when deciding the issues.[xix]
There was no standard in the judgments passed and the concept of precedents (stare decisis) was highly diluted because each court gave its own decision based on the advices of the religious advisor, in order to maintain peace. More often than not, the judgments were unfair and some were even patently arbitrary, being made according to the whims of the advisor. This is why the British felt the need to create some standard. They did so by codifying existing practices and customs into one document and then formally enacting it as a law.
These documents were prepared by a learned Law Commission, which was first created under the Charter Act of 1833. The first Law Commission was duly created in 1835, with its control under the Governor-General of India.[xx] Some of the contributions of the four pre-independence law commissions of India were:
The Court structure that we have today, in addition to the actual laws itself are greatly due to the efforts of the British Government. Their motives for creating such a large system that has continued to exist well after independence may not have been the most noble; it is however impossible to deny or discount their presence in our legal system today. What existed prior to the modifications and consolidations by the British hand, was a largely unorganised area which gave decisions that were neither fair, nor could be brought to scrutiny via any standard. The very enactments of the British legislature in India are to be credited for the setting up of a definite court structure.
The following points summarize the exact evolution of the current hierarchy of courts, in the form that they existed prior to Independence:[xxiii]
Post Independence the Constitution of India, has a similar hierarchy, with the Supreme Court on top (replacing the Federal Court of India) and the various state High Courts (replacing the Provincial High Courts), with various other courts under the High Courts.
During British rule, it can be said that India went through a great deal of experimentation and empirical learning. Many courts were created and then abolished and replaced with new mechanisms to resolve disputes. The British rule in India, had some very positive impacts on our legal system, and the manner in which we administer justice:
The real effect was felt post-independence through our Constitution laws. However, this idea of a fair and impartial system where the judiciary was independent from the other organs of state, came to India only via the British. The legal system that existed when the British came to India, was in great need of reform and thus the British gave our legal system the much needed change. Through their experimentation, the Constituent Assembly was able to see what new practices and what old Ancient practices could be could be coupled to form our new legal system after independence.
It is therefore concluded that the contributions of the British are so important that the very existence of our judiciary and legal system can be credited to them. The true impact of the British efforts can thus be summarised by saying that they revamped our legal system to make it fairer and more accessible to all citizens.
Edited by Kudrat Agrawal
[i] Prof. M. P. Jain, Outlines of Indian Legal & Constitutional History, (6 th Edition), Ch 7, Pg 54.
[ii] English East India Company.
[iv] M. P. Jain, Outlines of Indian Legal and Constitutional History, (6 th Edition) Pg 57.
[v] Futwa is the Urdu word denoting the law applicable to the circumstances of the case. It was to be according to Mohammedan law.
[vi] Mofussil Diwani Adalat.
[vii] Mofussil Nizamat Adalat.
[viii] M. P. Jain, Outlines of Indian Legal and Constitutional History, (6 th Edition) Pg 59.
[ix] Mofussil Diwani Adalat.
[x] English East India Company.
[xi] Sadar Diwani Adalat.
[xii] M. P. Jain, Outlines of Indian Legal and Constitutional History, (6 th Edition) Pg 61.
[xiv] M. P. Jain, Outlines of Indian Legal and Constitutional History, (6 th edition), Pg 119.
[xv] In full view of the public to increase accountability and reduce malpractices in serving justice to the people.
[xvi] A person with full legal knowledge equivalent to a lawyer in present day terms.
[xvii] S.D. Sharma, Administration of Justice in Ancient India, New Delhi: Harman Publishing House, 1988, p.170.
[xviii] See link: http://realityviews.blogspot.in/2010/12/part-34-indian-legal-history-charter-of.html.
[xix] See the cases of Khwaja Muhammad khan vs Husaini Begum, (1910) 12 BOMLR 638 and Srinath Roy vs Dinabandhu Sen, (1914) 16 BOMLR 901.
[xx] As stipulated in the Charter Act of 1833.
[xxi] Eugen Lang, Maurice. Codification In The British Empire And America. Lawbook Exchange. pp. 78–92. ISBN 978-1-58477-620-8.
[xxii] Char, S. V., Desika (1983). Readings in the constitutional history of India, 1757-1947. Delhi: Oxford. ISBN 0-19-561264-7.
[xxiii] Supreme Court Summary of the Evolution of the Judiciary, http://supremecourtofindia.nic.in/supct/scm/m2.pdf (visited on October 1, 2014).
[xxv] Dyanesh Kumar, Essay on the Impact of British Rule on Indian Administration, (Sep, 27, 2011), http://www.preservearticles.com/2011092714107/essay-on-the-impact-of-british-rule-on-indian-administration.html.
This is very informative. Is Prof Jain’s book available online? I need more details about the system that was in existence between 1890 and 1910. Any references? Reply
