The Dual Judicial System: Two Sets of Courts in One Country
Chapter Twenty-Nine
Syllabus topic 2.1, "Conflict Arising out of the Dual Judicial System"
Pages 141 to 145 of 491
In one line
For most of a century India had two complete systems of courts standing side by side in the same territory, and neither was subordinate to the other.
In the wording a student can write in an exam: the dual judicial system means the coexistence, from 1774 to 1861, of the Crown's courts in the Presidency Towns, created by royal 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 covenanted servants applying Hindu law, Muslim law and the Regulations, each with its own appellate hierarchy and neither subordinate to the other.
What the two systems were
You have met both. This chapter puts them beside each other, because the comparison is the topic.
| The Crown's courts | The Company's courts | |
|---|---|---|
| Where | The three Presidency Towns | The mofussil, everywhere else |
| Created by | Royal charter under the Great Seal, under an Act of Parliament | The Company's own Regulations, recognised by the Settlement Act 1781 |
| Names | Supreme Court of Judicature at Fort William (1774), at Madras (1801), at Bombay (1823) | Zillah and city Diwani Adalats, Provincial Courts of Appeal, Sadar Diwani Adalat; and on the criminal side the Courts of Circuit and the Sadar Nizamat Adalat |
| Judges | English barristers appointed by the Crown, of at least five years' standing | The Company's covenanted servants, with Indian judicial officers in the lower grades |
| Law applied | English law, subject to the personal-law rule of the Settlement Act 1781 | Hindu law, Muslim law, the Regulations, and otherwise justice, equity and good conscience |
| Procedure | English pleading, English forms, juries, prerogative writs | Prescribed by Regulation, simpler and cheaper |
| Language of record | English | English at first, relaxed for the Sadar courts by Regulation II of 1801 |
| Highest court | The Supreme Court itself | The Sadar Diwani Adalat and the Sadar Nizamat Adalat |
| Appeal to England | To the King in Council | To His Majesty in Council in civil suits of £5,000 and upwards |
| Who could legislate for it | The Governor-General in Council, but a Regulation was void unless registered in the Court (s.36 of the Act of 1773) | The Governor-General in Council, without registration, after the Settlement Act 1781 |
Two systems, two bodies of law, two sets of judges, two appellate ladders, one country.
The phrase "justice, equity and good conscience"
It appears in the table and it is worth explaining once, because it is the standing answer to the question "what did the Company's courts apply when neither Hindu nor Muslim law nor any Regulation covered the case?"
The answer given by the Regulations was that the court should decide according to justice, equity and good conscience. In practice that came to mean English law, so far as it was applicable to Indian society and circumstances, and Indian courts said so openly in the following century. The phrase survives in Indian statutes to this day.
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