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Indian Legal & Constitutional History 1600 to 1753 Short Notes For LLB Exam
Indian Legal & Constitutional History
Indian Legal History:
1. East India Company and Early British Administration (1600-1773).
2. Regulating Act, 1773: For Calcutta Presidency : Establishment of Supreme Court
Act of Settlement, 1781(After Patna Case, Nand Kumar Case, Cosijura Case for resolving disputes between Judiciary & Executive)
3. Pitt's India Act, 1784:Curtail the Political Function of the Court of Directors of the Company
4. Charter Acts 1786 to 1833: To eradicate the monopoly of the East India Company and to frame a one legislative organ for whole of the India
5. Charter Act of 1883 :To eradicate the monopoly of East India Co. to business in India
: To extent the legislative power of the Governor-General in Council
: New enacted law must be registered in the Supreme Court before execution
: Law Commission was constituted for Codification of Law- Lard Makaalay was the First Chairman of the Law Commission
: Indians were allowed for appointment on the Public-Post
Indian Legal & Constitutional History
Indian Constitutional History:
1.The Government of India Act, 1858 After 1858 Controlled & Supervisory power comes under the Queen's of England
: First Viceroy & the Governor General of India was appointed by Queen's of England
: Treaties have been made between Indian Kings & Queen's of England 099
: Jurisdiction of the Queen's Emperor would not be extended
: Queen of England will be duty bound towards the Indian People similarly like peoples of England
: Post of Secretary of State for India was constituted, giving him the Legislative, Administrative and Financial power
2. The Indian Councils Act, 1861: Initiation of De-centralization of power as was started since regulating Act, 1773
3. Establishment of Indian National Congress:
4. The Indian Councils Act, 1892:
Early Charters :
YEAR
1.1600
2.1609
3.1615
4.1623
S. 1661
6. 1683
7. 1686
8. 1694
9. 1698
10. 1726
11. 1753
Early Charters :
YEAR
1.1600
2.1609
3.1615
4.1623
S. 1661
6. 1683
7. 1686
8. 1694
9. 1698
10. 1726
11. 1753
Indian Legal & Constitutional History Unit-1
* Charter of 31st December, 1600: "The Governor and Company of Merchants Trading in to the East Indies" : For 15 years, on loss and against the interest of the people of England after giving prior 2 years notice company can be wind-up himself
Administration of East India Company: - 24 Directors out of which one Governor will be elected by election
: All Shareholders.
Powers of Company: - Only for English Persons
: For businessmen
a. Cape of Good Hope to Strail of Maglline
b. Monopoly in doing Business
: For Simple Legislative
a. Enactment of General Rules & Regulation
b. Enacted Rules and Regulations not contradictory to English Law
: For Very Simple Judicial
a. Simply delivering Justice in Civil and Criminal Offence
b. Punishment of Forfeiture of goods of English Businessmen and to send them to england
* Indian Legal & Constitutional History
} Charter of 1609: By this charter King James-I of England extended the time of East India Co. to stay in India for Uncertain period
Government Fund Year 1615: Power given to Captain of the Ship that during Sea Voyage he can punish the offender of Grievous Offence like- Murder, Dacoit & other heinous crime to Death Sentence
Government Fund Year 1623: Power had given to the company to punish its employees for the wrong committed in the area the Jurisdiction of the Company
Government Fund Year 1657: Recognized the East India Co. and the Joint Stock Co. who was doing his business in India .
* CHARTER OF 3rd APRIL 1661 (Judicial Power Charter) :Establishment of Presidency
: Power to Protect the Factory of Company
a) Construction of Factory like Fort for business,
b) for strengthen the Administration,
c) for the storage of Ammunition,
d) if required a treaty between the Indian Ruler for Peace & War
: Power of Administration
a) Constitution of Governor and its Council for regulating and punishing the people residing in the colonies and punish on violation of Law
: Judicial Rights
a) Power given to Governor & its Council
b) they have the jurisdiction above all the citizens either they were the British or Indian, residing in the colony
c) Power to adjudicate all the Civil or Criminal whether they are simple or grievous in nature
d) Power to punish the offender to Death Sentence
e) Power to follow the British Law & Procedural Law for adjudicating the Civil & Criminal cases .
* ANALYSIS OF CHARTER OF 1661(Judicial Charter): a) End of Indians Rituals and Customs,
b) Centralization of judicial and Executive Power,
C) Judicial work was in the hand of buisness
Characteristic of Charter of 1661:
a) Company being a Business Body have been converted into Administrative Body
b) Power to company to established its colony & fort for their security
c) Power to adjudicate all the Civil & Criminal Cases
d) Power to award Death Sentence and all another type of Punishment
e) Power to adjudicate upon all the British and Indian Citizen residing in the jurisdiction of the company
Comparison between the Charter of 1600 and 1661:
(1) 1600- Applied only on British People who were employee of the company 1661- Applied on all the people residing in the colonies established by the East India Company
(2) 1600- Establishment of Administrative Company in England by the Charter 1661- Appointment of Governor & its Council in India for Administration by the Charter
(3) 1600- Only Legislative power were given to the company 1661- Legislative along with Judicial power upon all the people were given along with punishment power
(4) 1600- English Law applicable only on British People
1661- English Law & Procedure applied on all the citizen of all the colonies controlled by the company.
* Indian Legal & Constitutional History
CHARTER OF 1683 (9th August, 1983) :Formation of Admiralty Court
: Establishment of One or More then one Admiralty Court in required English Colony
a) Provision of Constitution & Jurisdiction of Admiralty Court,
b) Constitution - One Judge Advocate + Two Assistant Judge (Businessmen),
c) Jurisdiction above the all types of Maritime and Mercantile Cases,
: Rule of Law
a) Justice will be delivered on the basis of Justice,
Equity, Good Conscious and the Customs of the merchants
b) Power to frame Procedural Law for adjudication according to their convenience
c) Power to execute Martial Law for the internal and external securities of the colonies.
* ESTABLISHMENT OF ENGLISH COLONIES & THEIR JUDICIAL ADMINISTRATION IN INDIA
CHARTER OF 1612-1687 : SURAT- DUAL ADMINISTRATION
: Company's Administration Establishment of Factory, 1612
a) Mugal Ferman by Emperor Jahangir 1615 (Tomas Roy) (1) Disputes between the English men would be resolved by their own law and procedure
(ii) If the dispute was within Englishmen and Local people the same would be resolved by local Mugal Court by their local customs as early as possible on sympathy consideration
b) Establishment of Autonomus Government
c) Governor and its Council.
(i) General Administration
(a) With the help of Kazi, Mufti, Kotwal & Fauzdar
(ii) Administration of Justice
(a) All Civil Cases By Governor & its Council
(b) Simple Criminal Cases to Governor and Council ⒸSerious Cases sent by the company to England
Establishment of English Colonies & their Judicial Administration in India
Charter of 1612-1687 :Surat- Dual Administration
: Mughal Administration (Native) Mughal Governor
a) General Administration by Mughal Governor
(i) With the help of Kazi, Mufti, Kotwal & Fauzdar
b) Administration of Justice
(a) All Civil Cases by Pandit and Kaji
(b) All the Criminal Cases by the Mughals Court on the basis of Mughal Criminal Law
Important Cases :
1. Dancers case: Refusing to dance in the governor Party. Punishment of Head Cut
2. Goldsmith Case: Making the Counterfeit Coin, hand of goldsmith was cut down These example shows that at that time of Judicial System was on in humanitarian Consideration.
Indian Legal and Constitutional History
Administrative of Justice in Madras 1639 - 1726
Charter of 1639 to 1665 ( first stage ) : Madras was founded in 1639 by Francis Day . Factory named First St. George
White town - People residing inside the fort
Black town - Indian People residing outside the fort
Judicial Administration : Madras was given the statue of agency
2 it administrative head was called the Agent with the help of council .
3 Madras Agency was under the subordinate of Surat presidency
Judicial System :- White town by agent and it's council court.
All civil cases and petty criminal cases
Black town - by hindu king, matter decided by chaultry court .
In chaultry court : Head of the village ( Adigar) will be judge
All civil cases and petty criminal cases .
* INDIAN LEGAL AND CONSTITUTION HISTORY
Administrative of Justice in Madras 1639 to 1726
Charter of 1661 :- Conferred extensive judicial power on the governor and council of a settlement .
a) Presidency status given in the colonies under the controlled of company
b) Agent had given the status of governor.
c) Governor and it's council provide judicial power for its presidency town .
d) All the civil and criminal cases come under the jurisdiction of governor in council
But charter of 1661 was not executed in Madras due to some reason .
Charter of 1665 - 1689 ( second stage ): Historical case of Mrs Ascentia Dawesa
a) Mrs Dawes kill a slave girl
b) matter was referred by the Agent in council for advice to the company authorities in England .
c) Charter of 1661 took effect and agent become the governor and judicial power extended from Englishmen to all living in settlement
d) Governor and council tried the case with the help of grand and petty jury .
e) Petty Jury consisted of 6 Englishmen and 6 Portuguese ( First jury trial)
f) Mrs Dawes was acquitted by the verdict of jury of not guilt,
: In March 1678 Governor and council decide to sit as a high court of judicature of two days in a week ,
All civil and criminal case tried according to laws of England with the help of jury of 12 men
: Chaultry court -3 Englishmen 2 days a week civil action more than 3 Pagodas up to 50 Pagodas appeal to Governor in council.
* INDIAN LEGAL AND CONSTITUTION HISTORY
Adminstration of justice in Madras : 1639 to 1726
Charter of 1686-1726 third stage : Admirally court:-
a) one judge advocate and two other judges .
b) All type of civil + criminal + Admiralty cases.
c) All type of cases related to buisness
: law applicable a) Justice , equity and good conscious
b) buisness custom and belief
c) Right to make procedural law
: Appeal to Mayor Court
Charter of 1687 - Corporation of Madras : one mayor English men + 12 Alderman +60 to 120 Burgesses
: mayor tenure - one year, thereafter elected by aldermen and Burgesses from Aldermen
: Aldermen hold office for life or residence in Madras .
Mayor Court : 1 mayor + 3 senior aldermen
: one recorder ( To record the court proceedings )
: All civi + criminal + probate + Ecclesiastical ( Religion) cases
Chaultry Court -2 Englishmen - 2 days a week , small criminal offences and civil cases up to 02 Pagodas appeal to Mayor Court .
Indian Legal & Constitutional History
Administration of Justice in Bombay: 1668-1726: Ex officio Governor & Council (Surat)
Charter of 1668-1683 (First Period): Deputy Governor and Council appointed to Administer Bombay
First Judicial System in Bombay 1670:Gerald Aungier Plan
a) Bombay divided into Two Division First- Bombay, Girgaon & Mazagaon Second- Mahim, Parel, Sion & Worli
Court- 5 Judges in each division (3 Judges were to form a Quorum)
President of Court-Englishmen Custom Officer of each division (Some judges were Indians)
Jurisdiction-Small theft & All civil cases nearly up to 150 rupees
Senior Court-Deputy Governor & Council (Tried with the help of Jury)
Appeal & Jurisdiction-From Divisional Court. Try all civil case over 150 rupees (200 Exeraphins)__ All treasonable, felonious, capital or criminal cases
Second Judicial Plan in Bombay 1672: (1) Diwani Judicial System:
a) High Court of Judicature- Judge: Wilcox- 200 Pond annual salary Jurisdiction:
(i) All Diwani & Probate Cases
(ii) Jury of 12 persons heard Civil Cases
b) Court of Conscience: Petty Civil Cases without the help of Jury, Court sit Once in a Week
(i) Heard the cases uptill 20 Xeraphins
c) Court are bound to maintain a register of all its proceedings & send an annual report
d) Re constitution of Panchayat to hear Self-Caste cases, their Judgment was recognized.
* Indian legal and constitutional history
Second Judicial Plan in Bombay 1672: (2) Criminal Judicial System
a) Whole area divided into Four Division Bombay, Malgaon, Mahim, Sion
b) Justice of Peace was appointed in Each Division
(1) Conducted Preliminary Enquiry in Criminal Case & Send all the record to Court
(ii) Court of Judicature: Sit in One Month: Wilcox Judge: Help of Jury
(iii) As per Law of Company, if law of Company was not their Law of England would applicable
c) Appea!: From the Judgment of Court of Judicature to Deputy Governor & Council
d) Appeal in All Diwani (Civil) and Criminal Cases e) Judgment of Deputy Governor and Council will be Final
Third Judicial Plan in Bombay 1684-1690: First Phase: Establishment of Admiralty Court
: One Judge Advocate + Two Businessmen
: Function of deciding ordinary Civil & Criminal cases and by confining it only Maritime and Mercantile cases Second Phase
: Reconstitution of Court of Judicature (1685) :
Civil & Criminal Cases
Appeal: From High court of judicature to Deputy Governor & Council
Session 1690-1718: Eclipse Period- In 1690, Bombay was attacked by Moghul Admiral Siddi, therefore Second period of Judicial System came to an End from 1690 to 1718
* Indian Legal & Constitutional History
Fourth Judicial Plan in Bombay 1718-1728: Re- Constitution of Court of Judicature
a) Dy. Governor Parker was appointed as Chief Justice
b) Nine other Judges: 5 English Person + 4 Native
c) All types of Civil, Criminal & Probate Cases
d) Decision on the basis of Law of Company or Law of England
Administration of Justice in Calcutta: 1690-1726: Administration of Justice by Native Mugal Emperor
a) Criminal System: Court of Mulla, Moulovi (Chief Kazi) at subah level
(i) Kazi in each sarkar (district), in each parganah, in each city & even in large village
(ii) Village Panchayat: Petty Criminal Cases
Appeal: Decision of Panchayat to Kazi of the sarkar, then to the Chief Kazi of the Subah, then to the Darogah-i-Adalut-ul-Alia to Nawab
b) Civil Judicial System: Panchayat headed by Zamindar
Appeal: Decision of Panchayat to Darogah-i-Adalat Diwani headed by Diwan
Administration of Justice by Company, 1790: Appointment of Collector
a) All Judicial Administration
b) Collection of Revenue, Civil & Criminal Administration of Justice
Appeal: To Governor and Council from the order of collector/zamindar,s court.
Indian legal and constitutional history
* CHARTER OF 1726 ( 24 SEPT 1726) ( KING GEORGE -1) : Establishment of Mayor,s court
a) Evolution of judicial system in three presidency town i.e Calcutta Madras and Bombay
a) Evolution of judicial system in three presidency town Calcutta Madras Bombay
b) uniformity of approach in each presidency similarly judicial system established
c) Establishment of civil and criminal court derived their authority from British crown not co .
General Administration - Mayor + 9 Aldermen for each presidency ( 2 must be prince or state in Amity with great Britain
1 MAYOR hold office for one year and continue thereafter as an aldermen .
2 Every year mayor elected from amongst the aldermen
3 Aldermen hold office for life or residence in the settlement
4 Appointment of Mayor and Aldermen by the crown
5 Governor and council has power to remove an aldermen on reasonable cause
6 Appeal against dismissal to King In Council
Adminstration of justice - Each Presidency the mayor and the aldermen constitute the mayor court
2 QUORUM of the Mayor Court was 3 ( Mayor oe senior aldermen + 2 aldermen )
3 Court hear and try all civil suits arising within the town and it's subordinate factories
Appeal : first' appeal to Governor and council within 14 days from where further
Second appeal to King in council ( privy council ) with in 14 days ,,,- all matters of 1000 Pagodas or more .
Mayor Court :- Act as a Court of record this punish a person of wills of the deceased person . One sheriff for execution of notices and decree of the court.
INDIAN LEGAL AND CONSTITUTION HISTORY
Criminal Jurisdiction : Each Presidency town the governor and five senior member of the council
2 Each of them was to be a justice of peace ( same power as in England )
3 A justice of peace arrest and punish accused for minor crime.
4 COMMIT rest of major crime to be tried by a quarter session
5 Three justice collectively have power of the court of Oyee and terminer and goal delivery this hold quarter session 4 time a year
6 Try and punish each and every criminal offences except high treason, committed in the presidency town and the subordinate factories
7 Quarter session were to be held with the help of grand and petty jury
8 Judgement on the basis of English Law.
Legislature Power ; After 1726 The governor and council of each presidency town to make bye laws rules and ordinance for the good government and regulations of the corporation and the inhabitants of the settlement but not contrary to the laws and statues of England
Charter of 1726 V Madras charter of 1687 - Charter of 1687 created by company
Charter of 1726 create by emperor Jorge first of England
:1687 applied only in Madras presidency town .
1726 applied equally to all three presidency town
1687 1 Mayor +12 aldermen +60 to 120 Burgesses
1726 - 1 mayor + 9 Aldermen.
Indian Legal & Constitutional History
* Charter of 1753 (Revised Charter of 1726):
1Jurisdiction of the Mayor's Court was expressly restricted vis-à-vis the Indians. Courts are debarred from entertaining a suit between the native until both parties agree
2Mayor Court was expressly authorized to entertain an action against Mayor (No person can sit as a
judge in his own case)
3 Created new court, called the Court of Request at each Presidency Town to decide cheaply,summarily & quickly cases up to 5 pagodas or 15 rupees
4 Court of request managed by commissioners between 8 to 24 in number, court sit once in a week
Courts in Presidency Town: Under the Charter of 1753: Presidency Town have- Court of request; Mayor's Court having civil jurisdiction; Court of the Governor & Council to hear appeals from the Mayor's
Court; for Criminal Cases Justice of Peace and the Court of Quarter Sessions consisting of the Governor & Council
Courts for the Indians:- The Hindu & the Muslims having their own special customs must be left free to dispose of their cases
:All cases up to 5 pagodas tried by the Court of Request
Note (General and Criminal Administration will be Same as in Charter of 1726)
Indian Legal & Constitutional History
Regulating Act of 1773: Special features of Regulating Act
(A) Provisions having relationship from England:-
1 Changes in Board of Directors: Tenure increased from 1 year to 4 year
2 Every year (six) directors in rotation retire, new six director elected
3 Voting power of the shareholders was restricted to those who held stock worth 1,000 Pond or more in the company
4 The directors were required to lay before the Treasury all correspondence from India relating to revenue
5 All correspondence to a Secretary of State dealing with the civil and military affairs of the Government of India
(B) Provision of Company relating to Government of India:-
(1) Establishment of Governor General and its Council instead of Governor and its Council-Term 5year Governor General + 4 member constitute GG and its Council (GG&C)
2 GG had only I vote & casting vote in case of a tie in the council
3 Centralization of power for ordering, management and government of all territorial acquisitions and revenues in the Kingdoms of Bengal, Bihar & Orissa
4 Decision in the Council meeting were to be made by a majority of votes.
Indian Legal & Constitutional History
* Regulating Act of 1773: Special features of Regulating Act
(ii) Establishment of Supreme Court at Calcutta
1Creation of the Supreme Court of Calcutta superseding the judicial system prevalent there under
2 court was to consist of a Chief Justice & three puisne judges to be appointed by the Crown & holding office during its pleasure
3 Only a barrister of at least 5 years standing could be appointed as a judge
4 Court was to enjoy Civil, Criminal, Admiralty and Ecclesiastical jurisdiction
5 Jurisdiction of the Court restricted to only a few defined categories of person, viz: British subjects & his Majesty's subject residing in Bengal, Bihar & Orissa, Person employed by, or directly or indirectly in the service of the Company or any of His Majesty's subjects
6The Supreme Court was not to be eligible to hear and try any indictment or information against the Govemor-General or a member of the Council for any offence committed in Bengal, Bihar & Orissa
7 The Supreme Court was to make provision for allowing appeals from its decisions to the King-in-Council
8 The Court was authorized to frame such rules of procedure, and to do all such acts, as were necessary for the administration of justice and due execution of all powers granted to it
(ii) Legislative Authority :-The GG & C were now authorized to make such rules, regulations and ordinances for the good government of the settlement of Fort William & factories subordinate to it.
Indian Legal & Constitutional History
* Regulating Act of 1773: Special features of Regulating Act
(ii) Establishment of Supreme Court at Calcutta :-
1: Creation of the Supreme Court of Calcutta superseding the judicial system prevalent there under
2 Court was to consist of a Chief Justice & three puisne judges to be appointed by the Crown & holding office during its pleasure
3 Only a barrister of at least 5 years standing could be appointed as a judge
4 Court was to enjoy Civil, Criminal, Admiralty and Ecclesiastical jurisdiction
:6 Jurisdiction of the Court restricted to only a few defined categories of person, viz: British subjects & his Majesty's subject residing in Bengal, Bihar & Orissa, Person employed by, or directly or indirectly in the service of, the Company or any of His Majesty's subjects
7 The Supreme Court was not to be eligible to hear and try any indictment or information against the Governor-General or a member of the Council for any offence committed in Bengal, Bihar & Orissa
8 The Supreme Court was to make provision for allowing appeals from its decisions to the King-in-Council
9 The Court was authorized to frame such rules of procedure, and to do all such acts, as were necessary for the administration of justice and due execution of all powers granted to it
(ii) Legislative Authority :-
: The GG & C were now authorized to make such rules, regulations and ordinances for the good government of the settlement of Fort William & factories subordinate to it.
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