THE JOURNEY OF INDIAN LEGAL SYSTEM (PART-1)

Introduction:

Whenever we hear the word “Court” we pictue a place where we will get justice. We see it as that one place where all our pleadings will be heard and the right decision will be given. This trust of people upon the judiciary system did not build itself overnight. Behind this trust was a long chain of history of our Indian legal system over the centuries that made sure- people get their words heard and justice served. Our Indian Legal system had seen its best and the worst days and had made its way where it stands today. So it is very much important that everyone must know how our legal system was shaped over the years and what the history behind it was.

Before the British Raj:

This was the period time where all of us have read in our school history textbook. The Mughals, The Marathas and various other monarchs and dynasties that existed and ruled the Indian sub-continent. There was no proper court system during these eras and the only place where people could get justice was before the monarch. The King was the ultimate Law system during this time. Of course with time, everything demands the change to take place and in case of our legal system, that changes came with the British Raj system. It was during British rule that we got our proper Court system running. We do hate the British for ruling us for 200 years but they were the ones who installed the concrete base of our legal system that we see today.

British Raj:

1600 to 1661:

Britishers came in India for trading with the permission of local governments in the year 1600. During those times, there was no proper mechanism to solve the disputes arising. The reason that Englishmen felt need to establish a legal system on Indian soil was two-fold:-

• Firstly, to solve the dispute immediately between them instead of waiting for the crown to make the decision, and

• Secondly to be governed by their home law instead of local laws. This paved the way for installing the first known legal system in place. However local population was kept out of the radius of dispute solving mechanism.

But with decades to follow, the need was felt that there should be proper court to deal with disputes arising between Englishmen as well as local population. So in Charter of 1661, The Governors of three presidency towns mainly- Bombay, Madras and Calcutta were granted the power to solve the dispute arising between the Englishmen as well as population residing under their control. This was regarded as the first Charter where permission was granted to establish Courts on Indian soil.

Establishment of Admiralty Courts in 1683:

Even though dispute solving powers were given to Governors, they felt that a more trained and expert person in Legal field should be appointed to deal with the dispute related problems, and so in 1683, the Company were granted right to establish ‘Admiralty Courts’ in various places to deal with various disputes relating to trespass, wrong committed in the territory on in high sea etc.

The Presidency town of Madras and Bombay received their own Admiralty Court but in Calcutta, there was no Admiralty Court. Instead judicial powers remained with the governor, and a different court called - ‘Collector’s Court’ was installed to deal with disputes.

Even though the courts were fulfilling the duty given to them, there was no proper judicial system. Keeping in mind this huge loophole, the courts underwent a makeover in the Charter of 1726.

Charter of 1726 - When Mayor’s court comes into existence:

The main reason for the passing of the charter of 1726 was to make more efficient and expert machinery to deal with disputes between ever-increasing populations. According to this charter, all the current functioning courts were suspended and three Mayor’s courts were established in the corporation of three presidency towns of - Madras, Bombay and Calcutta. The charter of 1726 proved to be more effective due to the reason that they drew their power directly from the crown of England instead of the company. This expanded their jurisdiction to vast extents.

Another important provision that was established in this charter was - appeal provision. The Appeals from courts in India were heard by Privy Council in England. Privy Council is the highest judicial machinery in England. The Privy Council remained the last court of Appeal for India till 1950 when the Supreme Court of India was established. I will discuss this in later parts.

Even though this charter proved more effective than the previous ones, much like the previous ones it had its own set of shortcomings. One of the major drawbacks was the law dealt in these courts were English law and native law of land were ignored completely which were not acceptable by the native population. It caused hardship among the natives which took the face of resentment towards courts and their law. To solve this problem, the native population was exempted from the Court’s jurisdiction. But with no other courts other than the Mayor’s court, the exemption was proved meaningless.

In 1757 when the company expanded its jurisdiction outside the limits of Presidency towns- a need was felt to install a court in the area which was then called - ‘Moufassil’ areas. Keeping this in mind, Moufassil courts were established to oversee the disputes arising in the Moufassil areas. These systems of courts were then named as “Adaalat system”.

In the coming years, need arose for a more strict and Crown controlled Judicial system and therefore Charter of 1773 was passed.

To be continued…….

OM SHANTI….