The Dual Judicial System: Two Sets of Courts in One Country

Notice what it means for this chapter. Even in the mofussil, English law arrived through the back door, as the residual rule. The difference between the two systems was not that one was English and the other Indian; it was that in the Presidency Towns English law applied as of right and in the mofussil only where nothing else did.

Why the duality was not a design but an accident

Nobody planned this. Each half arrived for its own reasons and neither was fitted to the other.

The Crown's courts came from a statute of 1773 aimed at controlling the Company's servants, and were placed in the Presidency Towns because that is where those servants were. Their jurisdiction over Indians was incidental, contested and, in the mofussil, mostly denied.

The Company's courts came from a plan of 1772 aimed at administering the Diwani, and were placed in the districts because that is where the revenue was. Their business was the ordinary civil and criminal justice of twenty million people.

The Settlement Act of 1781 might have fitted the two together and did not. As Cowell records, that Act, like the Act of 1773, contained no plain statement of the relation in which the Indian territories stood to the Crown, nor whether Indians were comprehended in the word "subjects", nor whether the provincial courts were to have a jurisdiction concurrent with the Supreme Court or exclusive of it, nor, if exclusive, what its limits were.

Those three unanswered questions are the whole of topic 2.1. Learn them as the frame and the conflicts are easy to remember, because each is an instance of one of them.

Concurrent and exclusive jurisdiction

The distinction in the third of Cowell's questions is worth stating because it is the technical heart of the topic.

Two courts have concurrent jurisdiction over a matter when either may hear it and the plaintiff may choose. They have exclusive jurisdiction when only one of them may hear it and the other must decline.

If the Supreme Court and the Sadar Diwani Adalat had concurrent jurisdiction over a class of case, then the same dispute could be begun in either, and the two might decide it differently, with no way of reconciling them because neither was above the other and their appeals went to different destinations.

If one had exclusive jurisdiction, somebody had to say where the boundary ran, and no instrument did.

Nobody ever answered the question, which means that in practice the answer was fought out case by case for eighty years, and that is what the next chapter describes.

A worked example

Take one piece of land near Dacca in 1830, and two claimants: Mr Wilson, an English indigo planter resident in Calcutta, and Mahesh, a zamindar of the district.

Mahesh sues Wilson for trespass. Wilson is a British subject resident in a Presidency Town, so the Supreme Court has jurisdiction over him, and will apply English law to the trespass and to the title.

Wilson sues Mahesh for the same land. Mahesh is not the Company's servant and pleads to the jurisdiction. The plea succeeds, and Wilson must sue in the zillah Diwani Adalat, which will apply Hindu law to the succession question at the root of Mahesh's title and the Regulations to the procedure.

So the same dispute about the same field can be tried in two courts, by two bodies of law, with two results, depending on who sues first. Whichever way it goes, the loser may appeal, one to the King in Council and the other, if the value is high enough, to His Majesty in Council, by two separate routes.

That is not a hypothetical difficulty. It is the ordinary condition of litigation between Europeans and Indians in the mofussil for eighty years, and it is the reason the Law Commissioners eventually recommended that the two systems be amalgamated.

What beginners get wrong

"The dual system means civil courts and criminal courts." It means Crown courts and Company courts. Each of the two systems had both a civil and a criminal side.

"The Supreme Court was superior to the Sadar Diwani Adalat." Neither was superior to the other. They were separate hierarchies with separate appeals. That is precisely the problem.

"Indians could not use the Supreme Court." They could, where it had jurisdiction, and they did: Kashinath Babu, the plaintiff in the Cossijurah case, was an Indian creditor using the Supreme Court against an Indian debtor. What was contested was the reach of that jurisdiction, not the right of Indians to invoke it.

"The mofussil courts applied only Indian law." They applied Hindu law, Muslim law and the Regulations, and, where none of those covered the matter, justice, equity and good conscience, which in practice meant English law adapted to Indian circumstances.

Limits and criticism

It is easy to write about the dual system as though it were absurd, and it is worth being more careful.

It had a defensible logic at the start. The Presidency Towns were small, densely settled, commercially English places whose inhabitants had used English law since 1726; the mofussil was an agricultural country of Hindus and Muslims governed by their own law. Applying different systems to two such different societies is not obviously wrong, and it is what the Settlement Act's personal-law rule assumes.

What made it indefensible was not the difference but the absence of any rule about the boundary, and the absence of any court above both. A federation of legal systems can work if somebody can say which applies. Here nobody could, and there was no common appellate court in India until the Federal Court in 1937 and no unified appeal in England until the Judicial Committee, which is the subject of the second half of this module.

The remedy adopted in 1861 was not to draw the boundary but to abolish it, by making one court out of the two. That is the Indian High Courts Act, and it is why that Act is the centre of Module II.

Quick revision

• The dual judicial system: Crown courts in the Presidency Towns, Company courts in the mofussil, from 1774 to 1861.
• Different creators, judges, law, procedure, appeals, and legislative control.
• The residual rule in the Company's courts: justice, equity and good conscience, which came to mean English law so far as applicable.
• The three questions neither the Act of 1773 nor the Act of 1781 answered: the relation of the territories to the Crown; whether Indians were "subjects"; and whether the provincial courts' jurisdiction was concurrent with or exclusive of the Supreme Court's, and if exclusive, within what limits.
• The remedy of 1861: not to draw the boundary but to merge the two courts.

Test yourself

1. Define the dual judicial system. The coexistence from 1774 to 1861 of the Crown's courts in the Presidency Towns, created by charter and staffed by English barristers applying English law, and the Company's courts in the mofussil, created by Regulation and staffed by the Company's servants applying Hindu law, Muslim law and the Regulations, each with its own appellate hierarchy and neither subordinate to the other.

2. State the three questions that neither the Regulating Act nor the Settlement Act answered. The relation in which the Indian territories stood to the British Crown; whether any Indians were comprehended under the term "subjects"; and whether the provincial courts had a jurisdiction concurrent with the Supreme Court's or exclusive of it, and if exclusive, what its limits were.

3. What is the difference between concurrent and exclusive jurisdiction, and why did it matter here? Concurrent jurisdiction means either court may hear the matter and the plaintiff chooses; exclusive means only one may. It mattered because if the jurisdictions were concurrent the same dispute could be decided differently by two courts with no common superior, and if exclusive somebody had to fix the boundary and no instrument did.

4. What did "justice, equity and good conscience" mean in the Company's courts? The residual rule applied where neither Hindu nor Muslim law nor any Regulation governed the case. In practice it came to mean English law so far as applicable to Indian society and circumstances.

5. Why was the duality not itself the fault? Because applying different bodies of law to two very different societies is defensible, and the personal-law rule of 1781 assumes it. The fault was that no rule fixed the boundary between the two systems and no court in India stood above both.