What the History of Courts Is, and How to Read This Book

An Act of Parliament is a statute passed by the Parliament at Westminster. From 1773 onwards Parliament legislated for India directly, and the Regulating Act, the Charter Acts, the Indian Councils Acts, the Government of India Acts and the Indian Independence Act are all Acts of Parliament. Several of them are called "Charter Acts" because they renewed the Company's charter, which is a name that has confused generations of students. A Charter Act is an Act of Parliament, not a charter.

A regulation was a law made in India by the Governor-General in Council for the Company's own territories. Cornwallis's forty-eight regulations of 1793 are the famous example. They were not Acts, because until 1833 the Indian legislature could not make Acts; they were subordinate law, made under a power given by an Act.

Jurisdiction means the authority of a court: what it may decide, over whom, and where. Almost every dispute in Module I is a dispute about jurisdiction, and it is worth noticing early that jurisdiction has three separate dimensions. There is jurisdiction over subject matter (may this court hear a revenue case at all?), over persons (may it summon this defendant?), and over territory (does its writ run in this district?). The Supreme Court at Calcutta and the Governor-General in Council quarrelled about all three at once.

Original jurisdiction means the power to hear a case for the first time, as a trial court. Appellate jurisdiction means the power to hear an appeal against another court's decision. A single court can have both, and in India the High Courts do: that is exactly what the Act of 1861 gave them, because it merged a trial court with an appellate one.

A Presidency Town meant Madras, Bombay or Calcutta: the three settlements where the Company had its headquarters, each under a President and Council. The mofussil meant everywhere else, the interior, the country districts. That single distinction runs through the whole of Modules I and II. For a century, English law and King's courts applied in the Presidency Towns and Indian law and Company courts applied in the mofussil, and the boundary between them was the source of every quarrel in this paper.

A Crown court was a court created by the Crown's charter, whose judges were appointed by the Crown and whose authority came from the King. A Company court was created by the Company, staffed by the Company's servants, and answerable to the Company. The Mayors' Courts of 1726 were Crown courts, because a royal charter created them. The Adalats of 1772 were Company courts. The Supreme Court of 1774 was a Crown court and the Sadar Diwani Adalat was a Company court, and that is why they could not be made to agree.

Two more words you will meet constantly. The Diwani was the right to collect the revenue of a province and to administer civil justice in it; it was a Mughal office, and the Company obtained it for Bengal, Bihar and Orissa in 1765. The Nizamat was the criminal side of the same government: the maintenance of order and the punishment of crime. Diwani courts are therefore civil courts and Nizamat courts are criminal courts, and the Sadar Diwani Adalat and the Sadar Nizamat Adalat are the chief civil and chief criminal courts of the Company's territories.

How this book is arranged, and why in this order

The book follows the University's own four modules and its own order, which is not chronological and is not meant to be.

Module I is the beginning: the charters from 1600, the Mayors' Courts, Warren Hastings's plans, the Regulating Act of 1773 and the Supreme Court it created, the seven famous proceedings that showed what was wrong with it, the Settlement Act of 1781 that answered them, and Cornwallis's three judicial plans.

Module II is the consequence: two systems of courts in one country, how they collided, how the Indian High Courts Act 1861 ended the split, and the appeal to the Judicial Committee of the Privy Council in London that sat above everything until 1949.

Module III jumps to 1950 and asks what the Constitution made of all this: the Supreme Court, the High Courts, the subordinate courts, the writs, and the three ideas the whole structure is supposed to serve, the rule of law, the independence of the judiciary and the separation of powers.

Module IV goes back to the beginning twice more, once to follow the legislature from the Charter of 1600 to the Indian Independence Act 1947, and once to follow the legal profession from pre-British India to the Advocates Act 1961 and the law reports.

So you will meet the Charter of 1600 in chapter 2 and again in Module IV, and the Government of India Act 1935 in Module II and again in Module IV. That is not repetition. The same document is being read for two different questions: what did it do to the courts, and what did it do to the legislature.

The one date that organises everything else

If you remember nothing else from this chapter, remember this. India did not have one system of courts until 1861.

From 1726 there were King's courts in the three Presidency Towns applying English law. From 1772 there were Company courts in the mofussil applying Hindu law to Hindus and Muslim law to Muslims. Those two systems ran side by side for nearly ninety years, with different judges, different procedure, different law, and separate appeals to London. Everything in Module I is about how the two came into existence and collided; the first half of Module II is about how they were finally merged.

A worked example

You are asked, in an examination, "Trace the development of the courts in India from 1600 to 1950." That is the whole paper in one line, and here is how a student who has read this book would build the answer.

Fix the two systems and the date they end. English law and King's courts in the Presidency Towns; Indian law and Company courts in the mofussil; and 1861, when one court replaced both.

Then take the King's side in order. The Charter of 1600 and the power to make law; 1661, the power to judge all persons living under the Company according to the laws of England; 1687, the first Mayor's Court at Madras under the Company's seal; 1726, Mayors' Courts at all three towns under the Great Seal, with an appeal to the King in Council; 1753, the amended charter; 1773 and 1774, the Regulating Act and the Supreme Court at Fort William; 1781, the Settlement Act.

Then take the Company's side. Hastings's plan of 1772 and the Adalats; the plans of 1774 and 1780; Cornwallis in 1787, 1790 and 1793.

Then join them. The conflict of the two systems, the Indian High Courts Act 1861, the letters patent of 1865, and the appeal to the Privy Council until 1949.

Then finish under the Constitution. The Supreme Court, the High Courts, the subordinate courts, the writs, and the three ideas of Module III.

Notice what the answer is made of: dates attached to instruments, and instruments attached to institutions. That is what this subject rewards, and it is why every chapter in this book names the charter, the Act or the regulation it is about in its own heading.

What beginners get wrong

"The Company was given the power to hold courts in 1726." No. The power to make laws and impose punishments was in the Charter of 1600 itself, and courts of a kind existed at Madras from 1687. What 1726 did was to create Crown courts on a uniform pattern at all three settlements.

"The Supreme Court at Calcutta became the Supreme Court of India." No. The Supreme Court at Fort William was abolished in 1862, when the Calcutta High Court replaced it. The Supreme Court of India was created by the Constitution in 1950, out of the Federal Court. The two are different institutions with the same name, ninety years apart.

"British India had no rule of law." Too simple, and the paper will not reward it. British India had courts that decided against the Government, and a Council that once sent sepoys to stop a sheriff. Module III asks you to weigh both, which is a different exercise from choosing a side.

Quick revision

• The subject runs from the Charter of 1600 to the Constitution of 1950, in four modules.
• A charter is a Crown grant, also called letters patent; an Act is passed by Parliament; a regulation was made in India under a power given by an Act.
• Presidency Towns are Madras, Bombay and Calcutta; the mofussil is everywhere else.
• Diwani is civil and revenue; Nizamat is criminal.
• Crown courts came from a royal charter; Company courts were the Company's own.
• Two separate systems of courts ran from 1772 to 1861, and 1861 is the date they were merged.

Test yourself

1. What is the difference between a charter and a Charter Act? A charter is a grant by the Crown under the Great Seal, creating a corporation or a court or a privilege. A Charter Act is an Act of the British Parliament renewing the Company's charter, and is a statute. The Charter of 1726 is a charter; the Charter Act of 1833 is an Act of Parliament.

2. What did "mofussil" mean, and why does it matter to this paper? Everywhere in the Company's Indian territories outside the three Presidency Towns. It matters because for nearly ninety years the law and the courts in the mofussil were entirely different from those in the Presidency Towns, and the boundary between them produced the disputes in Module I and the reform in Module II.

3. Name the two dimensions of jurisdiction that the Supreme Court at Calcutta and the Governor-General in Council quarrelled about. All three, in fact: subject matter (whether a revenue matter could be examined by the Court at all), persons (who counted as being in the Company's service, and so suable), and territory (whether the Court's process ran outside Calcutta).

4. Why is the same document, the Charter of 1600, taught twice in this book? Because MU's syllabus asks two questions of it. Topic 1.1.1 asks what it did for the administration of justice; topic 4.1.1 asks what it did for the legislature. It granted both powers in the same sentence.