The Company's Courts, and the Legal Practitioners Acts of 1846 and 1853

So by the middle of the nineteenth century there was a large hierarchy of Company courts, working in an Indian language, on Indian regulations, over almost the whole country. They needed practitioners, and the practitioners they got were the vakils.

Bengal Regulation VII of 1793: the first Indian legal profession

The class of vakils who had practised before the Mughal courts appeared afterwards in the Company's courts. What Regulation VII of 1793 did was to turn a practice into a profession, and it is the most important instrument in this chapter.

It called itself a Regulation "for the appointment of vakils or native pleaders in the courts of civil judicature in the Provinces of Bengal, Bihar and Orissa", and it may be said to have created for the first time a regular legal profession for the Company's courts. It did three things:

• it empowered the Sudder Dewanny Adawlat to enrol pleaders for all the Company's courts;
• it fixed the retaining fee for pleaders, a retainer being the sum paid to secure a pleader's services in a case; and
• it fixed a scale of professional fees based on a percentage of the value of the property in dispute.

Enrolment by a superior court, a fixed retainer, and a statutory scale of fees. Compare clause 11 of the Charter of 1774, where the Supreme Court admitted and enrolled and the fees were an English matter, and you can see the same idea taking a different shape.

And it had one extraordinary feature: under it only Muslims and Hindus could be enrolled as pleaders.

Put that beside the previous chapter. In the King's courts, only British barristers and attorneys could be enrolled. In the Company's courts, only Hindus and Muslims could be enrolled. Each system excluded the other's practitioners by the plain terms of its own rule, and the two professions were sealed off from each other by law.

1814 and 1833: consolidation, then opening

Bengal Regulation XXVII of 1814 consolidated the law on the subject, and empowered pleaders to act as arbitrators and to give legal opinions on payment of fees. That is a small provision with a large meaning: a man who may be paid to advise is doing something other than conducting a case, and the pleader has become a lawyer in the ordinary sense.

Bengal Regulation XII of 1833 modified the earlier provisions about the selection, appointment and remuneration of pleaders, and, decisively, permitted any qualified person of whatever nationality or religion to be enrolled as a pleader of the Sudder Dewanny Adawlat.

Note the year, because it is a good one to remember: 1833, the year of the Charter Act that gave India a legislature with power to make Acts and appointed a Law Commission, is also the year the pleadership of the Company's highest civil court stopped being reserved to Hindus and Muslims.

The Legal Practitioners Act 1846 (I of 1846)

This is the Act that does most of the work, and MU's topic label does not name it. It made three important innovations.

One: the office of pleader was thrown open to all duly certificated persons. People of any nationality or religion became eligible to be pleaders. What 1833 had done for the Sudder Dewanny Adawlat of Bengal, this Act did generally.

Two: attorneys and barristers were let in. By sections 3 and 5 respectively, attorneys and barristers enrolled in any of Her Majesty's courts in India were made eligible to plead in the Sudder courts of the Company, subject to the rules of those courts as regards language or otherwise.

Three: pleaders were allowed to enter into agreements with their clients for their fees for professional services. That undid the statutory scale of 1793: fees became a matter of contract between practitioner and client.

The Legal Practitioners Act 1853 (XX of 1853)

MU names this one, and its contribution is narrower than students assume. By section 4, the barristers and attorneys of the Supreme Courts were permitted to plead in any of the courts of the Company subordinate to the Sudder courts, subject to all the rules in force in those subordinate courts as regards language or otherwise.

1846 had let barristers and attorneys into the Sudder courts. 1853 took them the rest of the way down, into the subordinate courts of the mofussil. That is the whole of it, and it should be stated in one sentence and then set against what was not done.

While barristers and attorneys were thus permitted to practise in the Company's courts, the indigenous Indian legal practitioners were rigorously kept out of the three Supreme Courts. The traffic ran one way. That sentence is the answer to any question about the fairness of the arrangement, and it is the grievance that produced the demand for an Indian bar seventy years later.

The end of the Company

By the Government of India Act 1858 (21 & 22 Vict. c. 106) the Crown took over the administration of the territories governed by the Company, which thereafter retained only a formal existence for the purpose of its financial liquidation. The courts continued, and three years later the Indian High Courts Act merged them with the King's courts. The profession the next chapter describes is the profession of that merged court.

A table to learn

A worked example

Ramkanai Ghose, a Bengali landholder, is sued in the zilla court at Burdwan in 1840 over a boundary.

Who may appear for him? A pleader enrolled by the Sudder Dewanny Adawlat under the Regulations. In 1840 that pleader may be of any nationality or religion in the Sudder Dewanny Adawlat itself, by Bengal Regulation XII of 1833, but the general opening of the pleadership comes with the Act of 1846.

In what language? The language of the court, which is not English.

What law? The Regulations, and by section 9 of Bengal Regulation VII of 1832 the court gives judgment according to the principles of justice, equity and good conscience, and is expressly not to introduce English or any foreign law under cover of those words.

What will the pleader be paid? Under the Regulations of 1793 and 1814 a retaining fee and a fixed scale on the value of the property. After the Act of 1846 he may instead agree his fees with his client.

Now move the same dispute six years on, to 1852, and change one fact: Ramkanai wants an English barrister.

In the Sudder court? Yes. By sections 3 and 5 of the Act of 1846, barristers and attorneys enrolled in any of Her Majesty's courts in India may plead in the Company's Sudder courts, subject to that court's rules about language.

In the zilla court at Burdwan? Not until 1853. Section 4 of Act XX of 1853 is what extends the barrister's and attorney's right to plead to the Company's courts subordinate to the Sudder courts.

And can Ramkanai's pleader appear for him in the Supreme Court at Calcutta? No, at any date in this chapter. The Supreme Courts admitted only advocates and attorneys as those words were understood in 1774, and the Indian practitioner was kept out of all three of them.

What beginners get wrong

"The Act of 1853 opened the profession to Indians." It did not touch Indian practitioners at all. It let the barristers and attorneys of the Supreme Courts plead in the Company's subordinate courts. The opening of the pleadership to persons of any nationality or religion was done by Bengal Regulation XII of 1833 for the Sudder Dewanny Adawlat and by the Act of 1846 generally.

"Regulation VII of 1793 created the Indian legal profession." It created a regular legal profession for the Company's courts, and it created it as a closed one: only Muslims and Hindus could be enrolled under it. The Indian legal profession as one thing did not exist until much later.

"Vakils and pleaders are different professions." In this period they are two names for the same practitioner: Regulation VII of 1793 is headed "vakils or native pleaders". Grades among pleaders, and the separate class of mukhtars, come later and belong to chapter 750.

"The Company's courts applied English law." Expressly not. Section 9 of Bengal Regulation VII of 1832 required judgment according to the principles of justice, equity and good conscience, and stated that those words were not to be considered as justifying the introduction of English or any foreign law.

Limits and criticism

The reform of 1846 and 1853 looks liberal and was one-sided. Two professions existed; one of them was progressively admitted to the other's courts, and the other was not admitted at all. An Indian pleader of twenty years' standing in the Sudder Dewanny Adawlat could not appear in the Supreme Court at Calcutta in a suit of any value, and an English barrister newly arrived could appear in both.

The second criticism is about fees. Regulation VII of 1793 fixed a scale on a percentage of the value of the property, which is a protection for the client and a temptation to the practitioner in equal measure; the Act of 1846 replaced it with freedom of contract, which is a protection for the practitioner. Neither is a professional standard in the modern sense, and neither was accompanied by any organised body of practitioners with a say in the matter.

What should be said for the period is that the profession of the Company's courts was, by the middle of the century, a real one: enrolled by a superior court, open to any qualified person of any nationality or religion, entitled to be paid for advice and arbitration as well as for advocacy, and working in a language its clients spoke. It was, in every respect except its social standing in the Presidency Towns, ahead of the bar of the King's courts.

Quick revision

• The Company's civil courts: Mofussil Dewanny Adawlats under the Sudder Dewanny Adawlat; criminal: Foujdary Adawlats under the Sudder Nizamat Adawlat. Language Persian; the system copied in Bombay 1827 and Madras 1802, with a Sudder Dewanny Adawlat for the North-Western Provinces in 1831; procedure consolidated by the Code of Civil Procedure 1859.
• Bengal Regulation VII of 1793: "for the appointment of vakils or native pleaders". The first regular legal profession for the Company's courts. Enrolment by the Sudder Dewanny Adawlat, a fixed retaining fee, and a scale of fees on the value of the property. Only Muslims and Hindus could be enrolled.
• Regulation XXVII of 1814: consolidation; pleaders may arbitrate and give opinions for fees.
• Regulation XII of 1833: any qualified person of whatever nationality or religion may be enrolled as a pleader of the Sudder Dewanny Adawlat.
• Legal Practitioners Act 1846 (I of 1846): pleadership open to all duly certificated persons of any nationality or religion; ss.3 and 5, attorneys and barristers of Her Majesty's courts in India eligible to plead in the Sudder courts; pleaders may agree fees with clients.
• Legal Practitioners Act 1853 (XX of 1853), s.4: barristers and attorneys of the Supreme Courts may plead in the Company's courts subordinate to the Sudder courts.
• Indian practitioners were never admitted to the Supreme Courts.
• Government of India Act 1858: the Crown takes over from the Company.

Test yourself

1. What did Bengal Regulation VII of 1793 do, and what was extraordinary about it? It provided for the appointment of vakils or native pleaders in the courts of civil judicature in Bengal, Bihar and Orissa, empowering the Sudder Dewanny Adawlat to enrol pleaders for all the Company's courts, fixing the retaining fee and prescribing a scale of professional fees based on a percentage of the value of the property. It may be said to have created the first regular legal profession for the Company's courts. What was extraordinary was that only Muslims and Hindus could be enrolled under it.

2. Distinguish what the Act of 1846 did from what the Act of 1853 did. The Act of 1846 made three changes: it opened the office of pleader to duly certificated persons of any nationality or religion; by sections 3 and 5 it made attorneys and barristers enrolled in Her Majesty's courts in India eligible to plead in the Company's Sudder courts; and it allowed pleaders to agree their fees with their clients. The Act of 1853, by section 4, permitted the barristers and attorneys of the Supreme Courts to plead in the Company's courts subordinate to the Sudder courts.

3. What was the position of Indian practitioners in the King's courts throughout this period? They were rigorously kept out of the three Supreme Courts. The traffic was one way: British barristers and attorneys were progressively admitted to the Company's courts in 1846 and 1853, while no Indian practitioner could be enrolled in a Supreme Court, whose charters admitted only advocates and attorneys as those words were then understood.

4. What law did the Company's courts apply, and what were they forbidden to do? They applied the Regulations, and gave judgment according to "justice and right" under Bengal Regulation IV of 1793 and afterwards, under section 9 of Bengal Regulation VII of 1832, according to the principles of justice, equity and good conscience. That section stated expressly that those words were not to be considered as justifying the introduction of English or any foreign law.

5. When did the pleadership of the Sudder Dewanny Adawlat cease to be confined to Hindus and Muslims? By Bengal Regulation XII of 1833, which permitted any qualified person of whatever nationality or religion to be enrolled as a pleader of that court. The Legal Practitioners Act 1846 then made the same change generally.