Indian Legal and Constitutional History

The Governor Generalship of Lord Cornwallis which extended from 1786 to creative constitutes a very remarkable and a highly creative period in Indian Legal History.

He introduced for the first time the principle of administration according to law. The Adalat System left behind by him won praise and encomium from all quarters. The system introduced envisaged a division of revenue and judicial functions and their vesting in distinct functionaries. Cornwallis introduced changes in the judicial system thrice: first, in 1787; then in 1790 and, finally, in 1793. By the time he left India, he had thoroughly reorganized the judicial system, both civil and criminal, in Bengal, Bihar and Orissa and placed it on an entirely new basis. He introduced for the first time the principle of administration according to law. The Adalat system left behind by him won praise and encomium. It enjoyed such a high place in the esteem of the people as well as the administrators that it was adopted as the model for the judicial systems introduced later in the Provinces of Madras and Bombay.

Cornwallis received critical assistance from others in his effort to introduce legal reforms. William Jones, an expert on languages, translated existing Hindu and Muslim penal codes into English so that they could be evaluated and applied by English-speaking judges. Cornwallis began in 1787 by giving limited criminal judicial powers to the company’s revenue collectors, who already also served as civil magistrates. He also required them to report regularly on detention times and sentences given. In 1790 the company took over the administration of justice from the Nawab, and Cornwallis introduced a system of circuit courts with a superior Judges were drawn from the company’s European employees. These reforms also included changes to the penal codes to begin harmonizing the different codes then in use. By the time of his departure in 1793 his work on the penal code, known in India as the Cornwallis Code, was substantially complete. One consequence of the Cornwallis Code was that it, in effect, institutionalized racism in the legal system. Cornwallis, in a manner not uncommon at the time, believed that well-bred gentlemen of European extraction were superior to others, including those that were the product of mixed relationships in India. Of the latter, he wrote “as on account of their colour & extraction they are considered in this country as inferior to Europeans, I am of opinion that those of them who possess the best abilities could not command that authority and respect which is necessary in the due discharge of the duty of an officer.” In 1791 he issued an order that “No person, the son of a Native Indian, shall henceforward be appointed by this Court to Employment in the Civil, Military, or Marine Service of the Company.” Cornwallis’s biographers, the Wick wires, also observe that this institutionalization of the British as an elite class simply added another layer on top of the complex status hierarchy of caste and religion that existed in India at the time. Cornwallis could not have formalized these policies without the (tacit or explicit) agreement of the company’s directors and employees. Cornwallis’s attitude toward the lower classes did, however, include a benevolent and somewhat paternalistic desire to improve their condition. He introduced legislation to protect native weavers who were sometimes forced into working at starvation wages by unscrupulous company employees, outlawed child slavery, and established in 1791 a Sanskrit college for Hindus that is now the Government Sanskrit College in Benares. He also established a mint in Calcutta that, in addition to benefiting the poor by providing a reliable standard currency, was a forerunner India’s modern currency.

THE JUDICIAL SYSTEM OF 1787

The judicial scheme of 1781, introduced during Warren Hastings’s Governor-Generalship, envisaged a division of revenue and judicial functions and their vesting in distinct functionaries. The court of directors on 12th April 1786 directed the Cornwallis to vest in one person the revenue, judicial, and magisterial functions. Cornwallis followed the ordered and introduced plan of 1787. In this plan Cornwallis increased the salaries of collectors.

2nd He reduced the number of Diwani districts from 36 to 23 and this made it possible to increase the salaries of collectors. The scheme was introduced through 2 Regulations.

First Regulation dealt with Revenue Administration and it was introduced on 8th June 1787. Second Regulation dealt with administration of justice and it was enacted on 27 June 1787. In each district a company’s English covenanted servant was appointed as collector who will collect revenue as well as will decide the all cases relating to revenue. Collector also worked as Judge in the district Mofussil Diwani Adalat to decide civil cases, succession cases and land related cases like boundaries etc.

Revenue Court was known as mal Adalat .Appeals from mal Adalat went to the Board of Revenue at Calcutta. And it finally went to the Governor General.

Appeals in the cases where matters more than Rs. 1000/- went to the Sadar Diwani Adalat, where Governor General and council handled the cases.

Appeal from Sadar Diwani Adalat went to the King in Council.

In each Adalat registrar was appointed as a subordinate officer to help collectors.

Registrar was given power to handle decide cases up to rupees 200 and orders passed by him became valid when it were signed by the judge of Mofussil Adalat.

As a magistrate collector was authorized to try and arrest criminals in petty offences. Court that met in Calcutta and had the power of review over circuit court decisions.

Defects:

The magistrate got power to hear the cases against the Englishmen who committed crimes against Indians, in this case magistrate made inquiry and he felt that there is ground for trial, he would send the Englishman accused to the Calcutta for trial and if Indian complainant was poor, the government paid all the expenses of travelling to Calcutta. As magistrate, the collector was to arrest criminals and try and punish petty offences by corporal punishment not exceeding 15 strokes, or imprisonment not exceeding 15 days.

All the Europeans, who were not British subject, were placed on the same footing as the Indians and were made amenable to the local fozdari adalats. The scheme of 1787 was a retro step, a swinging back of the pendulum, as regards the administration of civil justice. In 1781, a progressive step had been taken by way of effecting separation between judicial and executive functions, but this remarkable achievement was annulled in 1787 when justice was made subservient to the needs of revenue collection.

THE JUDICAIL SYSTEM OF 1790

It was also called as the Scheme of Criminal Judicature. This scheme had three limbs. At the lowest rung of the ladder were the magistrates. Above them were the Circuits and the ultimate criminal court was the Sadar Nizamat Adalat. Everything was controlled by Nawab Reza Khan and who was not answerable to anyone. The salaries of the criminal court judges were very low which encouraged them to get involved in the corruption.

Low salaried kept honest and educated people away from this job and every corrupt man wanted to become the criminal court judge. Fozdari adalats did not give fast justice, it delayed the justice. Delayed justice encourages criminals to do more crimes. As there existed no fear from the law.

Cornwallis wanted to reform all this and introduced the new scheme on 3rd December 1790.

Main Features of the scheme of 1790:

1. Criminal justice system – transferred to English servants from Muslim law officers.

2. Muslim law officers became advisors to the court. Thus criminal cases could be decided quickly.

3. Districts got the magistrates, above them were Courts of Circuit and above them was Sadar Nizamat Adalat.

4. Sadar Nizamat Adalat was shifted to Calcutta from Murshidabad and Nawab was divested of his control over the adalat.

5. In Sadar Adalat Governor General and council members sat as judges and Muslim law officers helped them to understand the Muslim law.

6. Mofussil Fozdari adalats were abolished and on their place four court of circuits were established.

7. All districts in Bengal, Bihar and Orissa were arranged into four divisions of Patna, Calcutta, Murshidabad and Dacca.

8. Court of circuit was a moving court and it travelled from district to district in the given division.

9. Court of Circuit consisted of 2 companies covenanted servants and Muslim law officers help them.

The new criminal judicial system was inaugurated on January 1, 1791 and office of remembrance was abolished which was created in the time of Warren Hastings.

The salaries of the criminal court judges were increased and first time Governor General took the complete control of criminal justice system Bengal, Bihar and Orissa.

In 1792, company government sanctioned small sum as a payment to the prosecutors and witnesses who spent the days in court of circuit for their journey to attend the trials.

The criminals who completed the punishment, when came out of jail they were paid money to maintain themselves for a month.

Defects:

In due course of time, Cornwallis came to realise that there was no class of men who the government should watch with greater care and vigilance, and on whom the Regulations should have stricter control than the collectors. With time the work load court of circuits increase.

There was no provision as such to supervise the collectors, who got unlimited powers. Even the prosecution witness had to come twice, once when the magistrate held an inquiry at the time of arrest of the accused and once again when the trial was held by the Circuit Courts. This thus caused a lot of inconvenience on the poor people, and also increased load for the Circuit Courts.

Cornwallis understood the defects of the above schemes and He introduced the plan of 1793.

THE JUDICAIL SYSTEM OF 1793

The Scheme of 1793 was based on the following postulates:

The supreme power should divest itself of all interference in the sphere of administration of justice except in the last resort as a court of appeal. The collector was to be divested of judicial power not only in civil but even in revenue cases.

In May 1793, the Cornwallis code emerged as a legal code, representing a compilation of fort eight regulations. Drafter by Sir George Barlow (1762- 1864), it included measures covering both civil and criminal law. In Bengal, the code provided for the Governor-in Council to form both the Sadar Diwani Adalat (civil) and Sadar Nizamat Adalat (Criminal). In 1801, these appellate duties were transferred from the executive to the Supreme Court of Calcutta. The Cornwallis code further established four Provincial Courts of Appeal located in Calcutta, Murshidabad, Dacca and Patna. Provincial courts were further developed in 1795 at Benares and in 1803 at Bareilly. These courts handled cases on appeal from the District Courts of Bengal to prevent overloading the Sadar Diwani Adalat in Calcutta. Each Provincial court accepted appeals from six to nine District courts. They consisted of three English judges which were later raised to 4. They provided original justice in the case of criminal trials. Within the district, the Zilla court system provided primary civil justice and the Nizamat Adalat for criminal cases of the first instance. With these systematic developments, the collector gave up his judicial duties.

Cornwallis code of 1793 further removed the judicial duties formerly held by the collector and passed them to the Diwani Adalat established in each district it included guidelines for the appropriate for Hindu or Mohammedan laws.

In order to reduce the case loads at the district level, commissions consisting of Indian officials were developed to hear cases not exceeding 50 rupees in value.

The regulation further enacted that judges could commute the sentences of mutilation and amputation awarded by the Jutwa of Mohammedan law to hard labour for 7 years.

The Cornwallis code provided for the appointment of Vakils or Indian pleaders to serve in the courts of civil judicature in Bengal, Bihar and Orissa. The Sadar Diwani Adalat licensed the Hindu and Mohammedan pleaders. When required, ‘Public Pleaders’ could be employed to represent the government when it was a party. This measure empowered the Governor General to appoint covenanted servants of the company as justice of peace.

In 1793 the position of the law officer developed within the judicial system, in Bengal and then later in the other presidencies. The law officer advised judges of Zilla, city courts, and Sadar courts of issues regarding the personal law of Hindu and Muslims.

In 1795, Lord Cornwallis revived a system of fees or stamp duties on cases to discourage the introduction of frivolous cases in Bengal. The fee structure was further enhanced in 1797.

APPRAISAL OF THE SYSTEM OF 1793

Cornwallis’ reforms of 1793 were based on two basic postulates of the British Constitutional Law, viz., separation of the judiciary from the executive and the subjection of the executive to judicial control. Cornwallis believed that no system could ever effective so long as its due execution depended solely on the personal qualifications of the individuals appointed to work it. The security of person and property must be established by a system upheld by its own inherent principles. Cornwallis devised a scheme of 1793 which, from all standards and tests, constituted an exquisite system to afford protection to person and property.

The subsequent changes made in the adalat system introduced by Cornwallis were dictated mostly by the practical need to cope with the load coming before the adalats. These changes followed six main lines of development.

Firstly, the policy of disturbing justice free of cost was negative within a short time thus knocking out an important tenet on which the system of 1793 was based.

Secondly, there was gradual evolution of the subordinate judiciary below the district adalat.

Thirdly, the Indians gradually secured an increasingly larger share in the function of administration to justice.

Fourthly, applying the principle of separation of powers between the executive and the judiciary, the Sadar Adalats were separated from the executive and placed under separate judges.

Fifthly, the principle of separation was gradually negated at the lower level insofar as the decision of revenue matters was handed over to the collectors in course of time.

Sixthly, gradually, the right of appeal from the lower to the higher courts was curtailed.