Judicial Organisation under British India pre 1857

The Pre-British System of Justice

Before the British reforms, law in India came from three sources:

1. Customary laws — based on long-standing traditions and social practices of each community.
2. Religious laws —
   • Shastras for Hindus.
   • Sharia for Muslims.
3. Ruler’s authority — the king or nawab could issue orders and judgments.

⚠️ Inequality was built-in: Punishment for the same crime varied according to caste status — upper castes often faced milder penalties.

British Intervention — New Court Hierarchy

• Warren Hastings initiated reforms in the 1770s, stabilised by Lord Cornwallis in 1793.
• New system was formally based on “rule of law” and “equality before law”, but:
  • In practice, Europeans enjoyed separate courts and laws.
  • Legal equality was limited and ambiguous — racial privilege remained intact.

Early British Approach to Law

In the 1770s, the East India Company:

• Couldn’t entirely replace the existing system — so it modified it partially.
• Tolerated religious and customary laws:
  • Civil courts: Applied Hindu law to Hindus, Muslim law to Muslims.
  • Criminal courts: Applied modified (less harsh) Muslim criminal law.
• Pandits and Maulvis were attached to courts as legal experts.

Early Attempts to Codify Laws

The British wanted to reduce dependence on Indian legal experts by understanding the source texts themselves:

• 1776 — N.B. Halhed’s A Code of Gentoo Law.
• 1798 — H.T. Colebrooke’s Digest of Hindu Law on Contracts and Succession.

These works covered property, inheritance, marriage, caste, and succession.

Warren Hastings’ Judicial Plan of 1772

Civil Courts

• District Diwani Adalat — in each district:
  • Judge: The Collector.
  • Hindu law for Hindus, Muslim law for Muslims.
  • Assisted by Pandits and Qazis.
• Sadar Diwani Adalat — highest civil appeal court in Calcutta:
  • Presided over by Governor and at least 2 Council members.

Criminal Courts

• District Fauzdari Adalat — in each district:
  • Presided over by an Indian Muslim law officer.
  • Assisted by Qazis and Muftis.
  • Applied modified Muslim criminal law.
  • Could decide all criminal cases except death sentences — those went to higher authority.
• Sadar Nizamat Adalat — highest criminal appeal court:
  • Presided over by Daroga-i-Adalat (Indian judge) + Chief Qazi + Chief Mufti.

Supreme Court at Fort William (1774)

Created by the Regulating Act of 1773:

• 1 Chief Justice + 3 judges.
• Jurisdiction over:
  • Europeans.
  • Company’s employees.
  • Citizens of Calcutta.
• Could also try Indians in certain cases.

Conflict — Supreme Court vs. Governor-General’s Council

• Regulating Act 1773 gave Governor-General in Council control over civil and military administration, but also created the Supreme Court.
• Jurisdiction overlap:
  • Court claimed power to punish anyone, including revenue officers.
  • Applied English law even to Indians unfamiliar with it.
• No clarity on final authority → constant clashes.

The Amending Act of 1781 — Resolving the Clash

This Act:

1. Restricted Supreme Court’s jurisdiction — no interference in revenue collection.
2. Exempted landholders, farmers, and revenue officials from Court’s reach.
3. Confirmed that appeals from provincial courts went to Governor-General in Council, not the Supreme Court.
4. Directed Supreme Court to apply:
   • Hindu personal law to Hindus.
   • Quranic law to Muslims.

Cornwallis’ Judicial Reforms (1786–93)

Two major changes defined his tenure:

A. Separation of Revenue and Justice

• Earlier, the Collector combined revenue collection and judicial work.
• Cornwallis separated the two:
  • Collector → Revenue collection only.
  • Judge-Magistrate → Judicial work.

B. Multiplication of Courts

• Circuit Courts set up at Calcutta, Dacca, Murshidabad, and Patna.
• Presided over by European judges.
• Functioned as appellate courts for both civil and criminal matters.
  • In civil appeals → called Provincial Courts of Appeal.
  • In criminal appeals → part of the circuit system.

Structure of Civil Courts under Cornwallis

• Munsifs & Amins (Indian judges) — handled petty cases.
• Registrars’ Courts (Europeans) — intermediate level.
• Diwani Adalat in each district — presided over by District Judge (from Civil Service).
• Provincial Courts of Appeal — four in number.
• Sadar Diwani Adalat — final appellate authority in civil cases.
• Civil cases decided using customary laws of the concerned community.

Structure of Criminal Courts under Cornwallis

• Four divisions of Bengal Presidency, each with a Court of Circuit (civil servants as judges).
• Below them — Indian magistrates for petty cases.
• Appeals from Courts of Circuit → Sadar Nizamat Adalat.
• Criminal law still based on Muslim Criminal Law, but in a milder form.

Reforms under William Bentinck (1828–35)

• 1831:
  • Abolished Provincial Courts of Appeal and Circuit Courts.
  • Their functions shifted to District Judges and Collectors.
• Increased Indian participation:
  • Appointed Indians as Deputy Magistrates, Subordinate Judges, Principal Sadar Amins.
• 1833: Established a Law Commission under Macaulay to codify laws.
  • Led to:
    • Civil Procedure Code (1859)
    • Indian Penal Code (1860)
    • Criminal Procedure Code (1861)
  • Created a uniform legal system across India.

Later Developments

• 1862: High Courts established at Calcutta, Madras, Bombay (later Lahore, Allahabad).
• 1937: Federal Court set up under Government of India Act 1935 — handled disputes between governments and appeals from High Courts.

“Rule of Law” — Theory vs. Practice

Theory:

• Administration to be conducted according to laws, not personal whim.
• No one above the law — officials accountable like ordinary citizens.

Reality:

• Laws made autocratically by foreign rulers.
• Laws often defective — gave wide arbitrary powers to bureaucracy and police.
• Legality used as a tool of control, not protection.

“Equality Before Law” — Limited in Scope

Theory:

• Same law for all, regardless of caste, religion, or class.

Reality:

• Europeans had separate courts and legal privileges.
• Criminal cases against Europeans:
  • Could only be tried by European judges.
  • Even after 1836, Indian judges could not try Europeans in criminal matters.
• Civil cases: After 1836, Europeans could be tried in the same courts as Indians — but bias remained.

Problems with the Judicial System

• Expensive — poor avoided courts out of fear of financial ruin.
• Complex laws — alien and difficult for common people to understand.
• Corruption — in judicial and administrative machinery.
• Delays — cases dragged for years.
• Favouritism — officials often sided with the rich.

⚖️ Net Result:
The system favoured moneylenders, landlords, merchants who could manipulate the laws, while peasants and the poor were left unprotected against exploitation.