History of Indian Judiciary

India has a single unified and integrated judicial system and Supreme Court of India is at the apex court of the Indian judicial system. Judiciary plays an important role as an organ of the government. It settles disputes, interprets laws, protects fundamental rights and acts as guardian of the Constitution.

During ancient times, the concept of justice was inextricably linked with religion and was embedded in the ascriptive norms of socially stratified caste groups. Most of the Kings’ courts dispensed justice according to ‘dharma’, a set of eternal laws rested upon the individual duty to be performed in four stages of life (ashrama) and status of the individual according to his status (varna). In medieval times, the dictum ‘King can do no wrong’ was applied and the King arrogated to himself an important role in administering justice. He became the apostle of justice and so the highest judge in the kingdom. With the advent of the British colonial administration, India witnessed a judicial system introduced on the basis of Anglo-Saxon jurisprudence.

Mayor’s Courts

The story of India’s modern judiciary begins with the Mayor’s courts. Under the Royal Charter of 1661, the Governor-in-Council of each Presidency {That time they had two presidencies viz. Madras and Surat} were empowered ‘to judge all persons belonging to the said presidency or that shall live under them in all causes, whether civil or criminal, according to the laws of this Kingdom and to execute judgement accordingly’. This power was not exercised for at least two decades at Madras. In 1678, the Governor-in-Council decided that they should have two sittings per week to hear and judge all cases concerning Europeans and Indians as per the according to English Law. Meanwhile in 1687, another charter authorized the company to establish municipality at Madras to mark the beginning of territorial character of Company’s rule in Madras.

In exercise of this power, the company established a municipality. The Mayor and Aldermen were recognized as a “Court of Record” with power to try the civil and criminal cases in their territories. The Mayor and three of the twelve Aldermen were so called to be the “Justices of the Peace”. Similar courts were established in successive presidencies at Bombay and Calcutta.

Under the Charter of 1726, a Mayor’s court was established at each presidency town viz. Madras, Bombay and Calcutta. The difference between the old courts and this new court was that the earlier Mayor’s courts were of the Company but the newer courts were of the King of England. The terms in the charter made is implicit that English Law had to be applied in the Mayor’s Courts in India.

However, meanwhile French occupied Madras and this system remained suspended till 1749 when French surrendered Madras back. The Charter of 1753 was passed later to remove the difficulties of previous charter including the courts.  Under the new charter, the Mayor’s courts were put under the Governor-in-council to avoid disputes between the two. However, still judiciary suffered from lack of legal knowledge, overburdened executive, failure of impartial judgment, lack of local judges etc.

Supreme Court at Calcutta

Regulating Act of 1773 established for the first time the Supreme Court of Fort Williams in Calcutta in 1774, consisting of the Chief Justice and three judges (later reduced to two) appointed by the Crown acting as King’s court. Thus, establishment of this Supreme Court was ‘an act of reformation rather than of innovation‘, for it was intended ‘in fact to occupy the position of the Mayor’s Court founded in 1727 (under the Charter of 1726). This court was adorned  with powers such as power to punish for its contempt, power to try civil & criminal cases, ecclesiastical and admiralty jurisdiction etc. Appeals against this court could be taken to King-in-Council.

Sir Elijah Imphey was appointed as chief justice of this court.

Conflict between legislative and executive

The ambiguities of the Regulating Act 1773 led to frequent spats between the Supreme Court and the Governor General in Council. In 1781, this was remedied by substantially curtailing the powers of the Supreme Court in favour of the Governor-in-council. However, an attempt was made to separate the judicial meetings of the council with its executive meetings.

Recorder’s Courts

Due to increased activities of the Company, the need was felt to establish new courts. On February 1, 1798, the King issued another charter to establish two Recorder’s Courts at Madras and Bombay. Each Recorder’s court was made of one Recorder, one Mayor and three Aldermen of the Corporation. The Recorder’s court was same as that of Supreme Court of Calcutta in terms of powers, functions and limitations except in composition. In 1801 and 1824 Supreme Courts were established in Madras and Bombay respectively. The Constitutional powers, functions, limitations and jurisdiction of these courts were the same as that of the Supreme Court at Calcutta. These Supreme Courts functioned until 1862 when they were replaced by the High Courts at all the three places.

Mofussil Adalats

Mofussil means rural i.e. the places away from Company’s Presidency towns. The Company had attained the Diwani of Bengal, Bihar and Orissa in 1765. Warren Hastings established the Mofussil Faujdari Adalat as court of criminal jurisdiction and Mofussil Diwani Adalat as court of civil jurisdiction and Small Cause Adalat. The appeals from these courts could be taken to Sadar Nizami Adalat {criminal court of appeals} Sadar Diwani Adalat {civil court of appeals}. By that time Zamindars were also doing some kind of Judicial functions which Warren Hastings abolished. Warren Hasings is also known to have brought the judicial proceedings in writing and appointment of Indian judges in Faujdari adalats.

The system of judiciary had undergone change under Lord Cornwallis in 1787, 1790, and 1793. He thoroughly reorganized the civil and criminal judicial system in Bengal, Bihar, and Orissa and introduced the principle of administration according to law. The system under Cornwallis was of a three tier judiciary as follows:

Civil Judiciary

Lowest Court was the Amin Court or Munsif Court for cases involving value less than Rs. 50. Higher was Diwani Adalat or District court headed by a Session Judge. Higher than Diwani Adalat was the Provincial Court of Appeal. Four provincial Courts of appeal were set up at Dhaka, Calcutta, Murshidabad and Patna. After provincial court, the Highest Court of Appeal was set up which was called “Sadar Diwani Adalat”. The headquarters of Sadar Diwani Adalat was at Calcutta and it was the Highest Court of Appeal. Its judge was supported by a Head Qazi, two Muftis and Two Pandits. The appeals from  “Sadar Diwani Adalat” could be submitted to the King in England. The King of England only entertained those cases whose value was more than 5000 rupees.

Criminal Judiciary

At Taluka / Tahsil level, there was a Darogh-i-Adalat. Its judge was Darogha, who was an Indian judge. Appeals from Darogha could be taken to “District Criminal Courts”. The judge of this court was a Session Judge. To hear the criminal appeals from District courts, four circuit Courts at Murshidabad, Dhaka, Calcutta and Patna were established. The Highest court of Criminal appeal was in “Sadar Diwani Adalat” at Calcutta which used to sit once in a week. It was supervised by Governor General in council.

Lord Cornwallis also abolished the Court fee and asked the lawyers to prescribe their fee. He also abolished inhuman punishments of Mughal / sultanate era such as cutting limbs, cutting nose and ears etc.

Establishment of High Courts

The year 1861 also constituted a conspicuous landmark in the process of development of legal and judicial institutions in India. It was during this year that the steps were taken to establish High Courts at Calcutta, Madras and Bombay. These High Courts were not only better instruments of justice than the preceding courts, but also represented the amalgamation of the hitherto existing two disparate and distinct judicial systems, the Company’s Courts in the Provinces of Bengal, Bombay Madras, and the three Supreme Courts(established by the Royal Charter) in the Presidency town.

Indian High Courts Act 1861

The Indian High Courts Act of 1861 was passed by British Parliament to authorize British monarch to create high Courts in India. Objective of this act was to effect a fusion of the Supreme Courts and the Sadar Adalats in the three Presidencies. The High Courts of Calcutta, Madras and Bombay were established in their place. Each high court was to consist of  a Chief Justice and not more than 15 regular judges.

The High Courts enjoyed the same power over all persons and estates and had original, appellate and extraordinary original jurisdiction in civil cases whereas extraordinary and appellant jurisdiction in criminal cases. Later, more high courts were established at Allahabad (1875), Patna (1912), Lahore (1865) etc. Appeals from the High Courts would be now taken to Privy Council.

Federal Court and Supreme Court of India

A Federal Court at Delhi was established under the Government of India Act 1935. This court served as immediate precursor to current Supreme Court of India. It was composed of a Chief Justice and not more than six judges. It had original, appellate, and advisory jurisdiction. Its exclusive original jurisdiction was in all disputes between the federation and the units or between the units of the proposed federation. Appeal from the federal court could go to Privy Council without leave in case of original jurisdiction and with leave for any other matter. The Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act in 1949 to abolish the jurisdiction of the Privy Council in respect of appeals from India and also to provide for pending appeals. With this, India’s supreme Court was established at top of the unitary judicial system in India.

Judiciary debates in Constituent Assembly

The members of the Constituent Assembly envisaged the judiciary as the bastion of rights and justice. They wanted to insulate the courts from attempted coercion from forces within and outside the government. Sapru Committee Report on judiciary and the Constituent Assembly’s ad hoc committee on the Supreme Court report formed the bulk of the guidelines for judiciary. A.K.Ayyar, K.Santhanam, M.A.Ayyangar, Tej Bahadur Sapru, B.N.Rau, K.M. Munshi, Saadulla and B.R. Ambedkar played important roles in shaping the judicial system of India.

The unitary judicial system seems to have been accepted with the least questioning. The Supreme Court was to have a special, countrywide responsibility for the protection of individual rights. Ambedkar was perhaps the greatest apostle in the Assembly of what he described as ‘one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the Constitutional law, the Civil, or the criminal law, essential to maintain the unity of the country’.

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