BLS LLB 5 Years Sem 3 History of Courts 2023-24 Question Paper with Solutions

Under the Charter of 1726, the Mayor's Court in each Presidency town had jurisdiction to try all civil suits arising within the Presidency town and its subordinate factories, together with testamentary and probate jurisdiction, including the granting of letters of administration.

It had no criminal jurisdiction: that was given to the Governor and Council as Justices of the Peace, sitting in Quarter Sessions. An appeal lay to the Governor-in-Council, and from there to the King-in-Council where the sum in dispute exceeded 1,000 pagodas.

Under section 4(1) of the Advocates Act, 1961, the ex officio members of the Bar Council of India are:

1. the Attorney-General of India; and
2. the Solicitor-General of India.

The remaining members are elected by the State Bar Councils, one from each, from among their own members.

Certiorari means "to be certified" or "to be informed". It is a writ issued by a superior court to an inferior court or tribunal, calling up the record of a proceeding and quashing an order already made where the inferior body has acted without or in excess of jurisdiction, in violation of the principles of natural justice, or where there is an error of law apparent on the face of the record.

It is issued by the Supreme Court under Article 32 and by the High Courts under Article 226.

The main objective of the Act of Settlement, 1781 was to settle the conflict between the Supreme Court at Calcutta and the Governor-General in Council by defining the Supreme Court's jurisdiction, which the Regulating Act, 1773 had left undefined.

To that end it exempted the Governor-General and Council from the Court's jurisdiction for acts done in their official capacity, excluded revenue matters, provided that no person was subject to the Court merely as a zamindar or farmer of revenue, protected the judicial officers of the country courts for acts done judicially, and directed that Hindu law be applied to Hindus and Muslim law to Muslims.

Constitution

Under section 9, each Bar Council constitutes one or more Disciplinary Committees, each of three members: two elected by the Council from among its own members, and one co-opted advocate who has been practising for at least ten years and is not a member of the Council. The senior-most advocate presides. The co-opted outsider is deliberate: it prevents the Council from judging entirely within itself.

Jurisdiction

1. State Bar Council's Committee (section 35): where the State Bar Council has reason to believe that an advocate on its roll is guilty of professional or other misconduct, it refers the case to its Disciplinary Committee. The reference may follow a complaint or be made suo motu.

Procedure

The Committee fixes a date and gives notice to the advocate and to the Advocate-General of the State, both of whom have a right to be heard. Under section 42 it has the powers of a civil court in summoning and enforcing the attendance of witnesses, requiring discovery and production of documents, receiving evidence on affidavit and requisitioning public records. Its proceedings are judicial proceedings for the purposes of sections 193 and 228 of the Indian Penal Code, so false evidence before it is perjury.

Orders it may pass (section 35(3))

1. Dismiss the complaint, or direct that the proceedings be filed.
2. Reprimand the advocate.
3. Suspend him from practice for such period as it deems fit.
4. Remove his name from the State roll.

A suspended advocate is debarred from practising in any court or before any authority or person in India during the period (section 35(4)).

The provision

Article 32 provides:

1. the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed;
2. the Supreme Court shall have power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III;
3. Parliament may empower any other court to exercise, within its jurisdiction, all or any of these powers;
4. the right guaranteed by this article shall not be suspended except as otherwise provided by the Constitution.

Its character

Article 32 is itself a Fundamental Right. Dr Ambedkar called it the "heart and soul" of the Constitution, saying he would regard it as the article without which the Constitution would be a nullity. Two consequences follow:

4. Certiorari: to quash an order already made for want of jurisdiction, breach of natural justice or error of law apparent on the record; curative.
5. Quo warranto: to call on the holder of a public office to show his authority; any member of the public may apply.

Its limits

1. It is confined to the enforcement of Fundamental Rights. For an ordinary legal right the remedy is Article 226 in a High Court, which is wider because it extends "for any other purpose".
2. It may be suspended during an emergency under Article 359, but since the Forty-fourth Amendment, 1978 never in respect of Articles 20 and 21.
3. Article 361 protects the President and Governors; Articles 122 and 212 bar inquiry into legislative proceedings.
4. The Court will not decide seriously disputed questions of fact in a summary proceeding.

What law reporting is

The systematic recording and publication of judicial decisions, with the facts, the arguments and the reasons, so that the principle laid down can be found and applied afterwards.

The advantages

1. It makes the doctrine of precedent workable. Article 141 makes the law declared by the Supreme Court binding on all courts, and stare decisis requires a court to follow earlier decisions; neither is possible unless the earlier decision has been accurately recorded and published. Reporting is the machinery of precedent.
2. Certainty of the law. A lawyer can advise and a citizen can order his affairs only if the law as the courts apply it can be found.
3. Uniformity, so that a court in one part of the country decides a point as courts elsewhere have decided it.
4. Equality before the law, since like cases are decided alike, which is the practical content of Article 14.

Law reporting in India

Before the nineteenth century the decisions of the Adalats and the Mayor's Courts were not published at all. Private and unofficial reports then appeared, of varying accuracy and sometimes conflicting. The Indian Law Reports Act, 1875 made reporting official: the High Courts' judgments were to be published in an authorised series, the Indian Law Reports, and no court was bound to hear cited any report of a High Court decision other than one published under the authority of the Government. Today the Supreme Court's decisions appear in the Supreme Court Reports alongside recognised private series.

Criticism

The volume of reported case law is now so great that legal research has become a specialised skill, and the sheer bulk works against the certainty that reporting is meant to secure.

2. Persuasive: a decision the court may consider but need not follow, such as a decision of a coordinate High Court, of a foreign court, or obiter dicta.
3. Original, laying down a new rule, and declaratory, applying an existing one.

The position in India

1. Article 141: the law declared by the Supreme Court is binding on all courts within the territory of India.
2. The Supreme Court is not bound by its own decisions and may reconsider them; a larger Bench may overrule a smaller one.
3. A High Court binds all courts subordinate to it within its territory. A single judge is bound by a Division Bench of the same High Court, and a High Court is not bound by the decision of another High Court, which is only persuasive.
4. Article 374(2) preserved the authority of the decisions of the Federal Court and the Privy Council until altered.

1. Kamaluddin Ali Khan was a revenue farmer. He held a farm as the ostensible holder, that is in his own name but on behalf of Kanta Babu, the banian of Warren Hastings, who was the real party in interest.
2. Arrears of revenue were found due on the farm.
3. The Calcutta Revenue Council, the Committee of Revenue, ordered his committal to prison for the arrears, without bail, under the summary powers the Company's officers exercised in revenue matters.
4. Kamaluddin applied to the Supreme Court for a writ of habeas corpus, contending that his accounts were disputed and unsettled, that he was only the ostensible holder and not the person really liable, and that imprisonment before his liability had been determined was unlawful.
5. The Court issued the writ, held the return made by the Revenue Council to be defective, and admitted him to bail, laying down:

• that where the account is disputed a person must be bailed until the enquiry into his obligation to pay is complete, since imprisonment cannot precede the determination of liability; and

4. English law was applied to Indians who had never lived by it and had no notice of it, which is the grievance behind the Nandkumar case.
5. The control over Bombay and Madras was ineffective, since they could act in an emergency or on direct orders from the Company, and were months away by sea.
6. Parliament's control was indirect and weak; there was no body in England charged with supervising Indian policy, a defect cured only by Pitt's India Act, 1784, which created the Board of Control.
7. The prohibition of private trade and presents had no machinery of enforcement.
8. It did nothing for the Indian population: it regulated the Company and created a court for British subjects, leaving the administration of justice in the mofussil untouched.

The outcome

The Act of Settlement, 1781 expressly excluded revenue matters, and acts done in the collection of the revenue, from the Supreme Court's jurisdiction, which reversed the practical effect of the decision.

5. The Council referred the matter to its law officers, the Kazi and two Muftis, directing them to go to the spot, examine the parties and report.
6. The law officers went to the widow's house, seized the property and made an inventory; it was alleged that she was treated with violence and turned out. They reported her deeds to be forged.
7. On that report, and without any trial of the issue, the Council decreed the estate to Bahadur Beg, allowing her only a one-fourth share by way of dower.
8. She refused it, took sanctuary in a dargah, and sued in the Supreme Court at Calcutta against Bahadur Beg, the Kazi and the Muftis for assault, battery, false imprisonment, breaking her house and depriving her of her property.
9. The Supreme Court assumed jurisdiction, holding the defendants to be persons employed by the Company; found the proceedings illegal; gave judgment for the widow; awarded Rs 3,00,000 in damages; and, on non-payment, committed the defendants to prison.

(II) The consequences

5. It led to a parliamentary inquiry by a Select Committee of the House of Commons into the administration of justice in Bengal.
6. It produced the Act of Settlement, 1781, several of whose provisions answer this case directly: the judicial officers of the country courts were protected for acts done in their judicial capacity; the Governor-General and Council were exempted for official acts; revenue matters were excluded; a man was not within the Court merely as a zamindar or farmer of revenue; Hindu and Muslim personal law was to be applied in inheritance and succession; and the Sadar Diwani Adalat was made a court of record with an appeal to the King-in-Council.

4. The Raja applied to the Governor-General and Council, who took the opinion of the Advocate-General. On that advice the Council issued a general notification to all zamindars, landholders and farmers of revenue that they were not subject to the Supreme Court unless actually employed by the Company or having submitted to it, and directed the Raja not to appear.
5. The Raja evaded the process and hid. The Court sent its Sheriff with an armed party to arrest him, and it was alleged that his house and a place of worship were violated in the search.
6. The Council sent a body of sepoys, who seized the Sheriff and his men, confined them, brought them back to Calcutta and released the Raja.
7. The Supreme Court then entertained an action by Cossinath against the Governor-General and the members of Council personally, and against the commanding officer. They refused to appear, denying that the Court had any jurisdiction over them.
8. The Court's process having been defeated by force, the quarrel went to Parliament, which appointed a Select Committee (the Touchet Committee) to inquire into the administration of justice in Bengal.

7. The Governor-General in Council was empowered to frame regulations for the provincial courts and councils.
8. The Company's servants remained subject to the Court in respect of their private transactions, so the immunity was for official acts only.

Assessment

The Act did what the Regulating Act, 1773 had failed to do: it drew the boundary, settling who was subject to the Supreme Court and what law it was to apply, substantially on the Council's terms. The Court lost the immediate contest, though the principle it had asserted, that the executive is answerable in a court of law for acts beyond its authority, is the principle on which Articles 32 and 226 now rest.

A note on identification

The paper does not name the case, and the passage quoted is taken from a narrative of the disputes between the Mayor's Courts and the Governors-in-Council in the Presidency towns. It is one of the recurring jurisdictional quarrels under the Charter of 1726, in which the Mayor's Court asserted a jurisdiction, referred the question to the Governor-in-Council, and then proceeded despite the Council's objections. The answer below gives the facts of that class of dispute, the documented instances, and the consequences, which is what the question is testing. If your examiner has a particular case in mind, the material is the same.

(I) The facts, and the dispute they belong to

The setting. The Charter of 1726, granted by George I, established a Mayor's Court in each of the three Presidency towns, consisting of a Mayor and nine Aldermen, with jurisdiction over all civil suits arising within the town and its subordinate factories. The Aldermen held office for life and filled their own vacancies. An appeal lay to the Governor-in-Council, and thence to the King-in-Council where the sum exceeded 1,000 pagodas. Criminal jurisdiction was not given to the Court but to the Governor and Council as Justices of the Peace, sitting in Quarter Sessions.

The documented instances. At Madras the Court and the Governor quarrelled over the Court's claim to try suits between Indians touching caste and religious usage, and over the Governor's interference with its process. At Bombay the same conflict arose in its sharpest form, on the jurisdiction of the Mayor's Court over natives in matters concerning their caste and religion, the Governor-in-Council maintaining that such disputes belonged to the parties' own communities. At Calcutta the disputes concerned process against Company servants and the Governor's refusal to enforce the Court's orders.

(II) The consequences

1. It asserted that the Mayor's Court was the judge of its own jurisdiction, which was constitutionally impossible in a body whose appellate court was the very Council whose opinion it had rejected.
2. It deepened the conflict between the Court and the Governor-in-Council, and made the working relationship between them unworkable.
3. It exposed the structural defect of the Charter of 1726: the Governor-in-Council was simultaneously the executive government, the appellate court from the Mayor's Court, and the employer of every judge who sat in it. No court could be independent on those terms, and no such court could safely defy that Council either.

Constitution. A Mayor's Court in each of the three Presidency towns, of a Mayor and nine Aldermen; the quorum was the Mayor or the senior Alderman with two Aldermen; seven of the nine Aldermen had to be natural-born British subjects. The Mayor was elected annually by the Aldermen; the Aldermen held office for life or until removed, and filled their own vacancies.

Character. These were Crown courts, established by royal charter. Their decrees were the King's, recognised in England, and appealable to the King-in-Council.

Jurisdiction. All civil suits arising within the Presidency town and its subordinate factories, and testamentary and probate jurisdiction with power to grant letters of administration. Criminal jurisdiction was given not to the Court but to the Governor and Council as Justices of the Peace, holding Quarter Sessions.

Appeals. To the Governor-in-Council, and thence to the King-in-Council where the sum exceeded 1,000 pagodas.

Law applied. English law as it stood in 1726, thereby introduced into the Presidency towns.

3. How it worked in practice

1. The judges were merchants, not lawyers, applying an English law none of them had studied.

3. The Aldermen's tenure. They held office for life and filled their own vacancies, so they were independent of the Governor, who resented it deeply.
4. Jurisdiction over Indians, especially in matters of caste and religion, where the Court applied English law to disputes the Governor thought it had no business to touch.

The instances.

1. At Madras, the Court and the Governor quarrelled over its claim to try suits between Indians touching caste and religious usage, and over the Governor's interference with its process.
2. At Bombay, the same conflict arose in its sharpest form, over the jurisdiction of the Mayor's Court over natives in matters concerning their caste and religion, the Governor-in-Council maintaining that such disputes belonged to the parties' own communities.
3. At Calcutta, disputes arose over process against Company servants and over the Governor's refusal to enforce the Court's orders.

6. Assessment

Achievements. The Mayor's Courts introduced English law and judicial procedure into India; established the appeal to the King-in-Council, which endured until 1949; created courts of record with regular procedure and written records; and gave the Presidency towns their first settled civil justice.

Failures. The judges were not lawyers; the Court was not independent of the executive it existed to check; a foreign law was applied to an Indian population; and jurisdiction over Indians in personal matters was a standing grievance. The Charter of 1753 ended the conflict by subordinating the judiciary, a solution in the wrong direction, and the defect was repaired only by the Supreme Court of 1774, an independent Crown court staffed by professional barristers appointed by the Crown.

1. Supremacy of law, or absence of arbitrary power. No man may be punished except for a distinct breach of law established in the ordinary manner before the ordinary courts. Wide discretionary authority in government is the negation of the Rule of Law.
2. Equality before the law. Every man, whatever his rank or condition, is subject to the ordinary law and amenable to the ordinary tribunals. No official enjoys exemption from the law that governs the citizen.
3. The constitution is the result of the ordinary law of the land. In England the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions in cases brought by private persons, not of a written guarantee.

3. Criticism of Dicey

1. He misunderstood the French droit administratif, treating separate administrative courts as a denial of equality when in fact they often gave the citizen a better remedy against the State.
2. Discretion is unavoidable in a modern welfare State; the real question is whether it is guided, reviewable and exercised for the purpose given.

1. Judicial review. The courts may declare void any law or executive act inconsistent with the Constitution. This is the Rule of Law's principal machinery and the source of the Indian judiciary's position.
2. Arbitrariness itself is a ground of invalidity. In E. P. Royappa v. State of Tamil Nadu (1974) and Maneka Gandhi v. Union of India (1978), Article 14 was held to strike at arbitrariness, not merely at unreasonable classification. This is Dicey's first principle in its Indian form, and it is the most-used doctrine in Indian administrative law.
3. Article 21 made substantive. Maneka Gandhi held that a procedure depriving a person of life or liberty must be fair, just and reasonable, converting a formal guarantee into a substantive one and bringing a wide field of executive action under judicial control.
4. The Rule of Law is part of the basic structure. Kesavananda Bharati v. State of Kerala (1973) laid down the basic structure doctrine; Indira Nehru Gandhi v. Raj Narain (1975) struck down the Thirty-ninth Amendment so far as it placed the Prime Minister's election beyond judicial scrutiny, holding the Rule of Law and free elections part of the basic structure. Not even a constitutional amendment may abrogate it.

8. Control of the executive through the writs. Articles 32 and 226 give every citizen a direct remedy against unlawful official action, which is the point at which the doctrine becomes usable by an individual.
9. The low point and its correction. In ADM Jabalpur v. Shivkant Shukla (1976) the majority held that during the Emergency no person could move any court for habeas corpus, which was in substance a denial of the Rule of Law. Justice H. R. Khanna's dissent was vindicated: the Forty-fourth Amendment, 1978 made Articles 20 and 21 non-suspendable, and the decision was expressly overruled in K. S. Puttaswamy v. Union of India (2017).

6. The doctrine's origin in India

India did not receive the Rule of Law in 1950. Lord Cornwallis is regarded as its pioneer, through the Code of 1793, which separated the judiciary from the revenue administration and made the Government suable in its own courts. Before that the Supreme Court at Calcutta had asserted the same principle against the Governor-General in Council in the Patna and Cossijurah cases and had been defeated, the Act of Settlement, 1781 giving the Council immunity for official acts. The doctrine was premature in 1780, established in principle in 1793, and made enforceable by an individual only in 1950.

For full marks, cover: the pre-British position, exclusion from the Crown courts, regulation in the Company's courts, the Legal Practitioners Acts, the High Courts, the Act of 1926, then the necessity for the Act of 1961 as a separate numbered head, and what the Act did.

Part 1: The growth of the profession

1. Before the British. Under the Hindu system there was learning but no organised profession: the pandit was a scholar who advised the court, not a party's representative. Under Muslim rule the vakil appeared for a party before the Kazi, but he was closer to an agent than a lawyer, appointed by the litigant, belonging to no organised body, and holding no qualification the State recognised.

• Legal Practitioners Act, 1846: the office of pleader was thrown open to all persons of whatever nationality or religion who were duly certified, and attorneys and barristers of the Supreme Courts were allowed to plead in the Company's courts. The first real breach in the wall between the two systems.
• Legal Practitioners Act, 1853 carried the process further.

5. The High Courts and consolidation.

• Indian High Courts Act, 1861 and the Letters Patent: the new High Courts, replacing both the Supreme Courts and the Sadar Adalats, could approve, admit and enrol advocates, vakils and attorneys, and Indian vakils were admitted to the High Courts.
• Legal Practitioners Act, 1879 consolidated the law, bringing the six grades, advocates, vakils, attorneys, pleaders, mukhtars and revenue agents, under one enactment, with discipline in the High Courts.

4. Racial and imperial distinctions survived. The English-qualified barrister retained precedence and privileges that the Indian vakil did not have, more than a decade after independence.
5. Discipline lay largely with the courts, not with the profession, which was inconsistent with a self-governing Bar in an independent country.
6. There was no national body to lay down standards of professional conduct, so practice varied between High Courts.
7. Nobody was responsible for legal education. Standards were set by universities with no reference to what the profession required, and the Fourteenth Report of the Law Commission (1958) described Indian legal education in severe terms.
8. The governing statutes were colonial and overlapping: the Legal Practitioners Act, 1879, the Indian Bar Councils Act, 1926 and various High Court rules.

These defects were examined by the All India Bar Committee (1953) under Justice S. R. Das, which recommended a unified Bar for the whole of India, a common roll, an all-India Bar Council with State Bar Councils, and the abolition of the classes of practitioner; and by the Fourteenth Report of the Law Commission (1958), which recommended the same and added proposals on legal education.

Assessment

The history is one of movement from exclusion to equality: outside the Crown courts altogether, then admitted to the Company's courts under an inferior regulated status in 1793, opened irrespective of race in 1846, admitted to the High Courts after 1861, given partial self-government in 1926, and finally in 1961 a single national profession in which no distinction of race or grade survives.

Article 226: every High Court may issue the same writs for the enforcement of Fundamental Rights and for any other purpose, throughout its territories and, under Article 226(2), where the cause of action arises wholly or in part within them.

3. The difference

4. Certiorari ("to be certified"): an order quashing an order already made. Curative. Grounds: want or excess of jurisdiction, breach of natural justice, error of law apparent on the face of the record, and fraud. A. K. Kraipak v. Union of India (1969) extended it to administrative orders affecting rights.

5. Quo warranto ("by what authority"): an order calling on the holder of a public office to show his authority, and ousting him if it is unlawful. The office must be public, created by statute or the Constitution, and substantive. Any member of the public may apply.

5. The principles applied in adjudication

1. Locus standi. Traditionally only the person aggrieved could apply. The rule has been relaxed for public interest litigation, so that a public-spirited person may move the court for those unable to do so (S. P. Gupta v. Union of India, 1981). In quo warranto standing was always wide.
2. Alternative remedy. A writ is ordinarily refused where an equally efficacious statutory remedy exists. This is a rule of discretion, not of jurisdiction, and it yields where a Fundamental Right is infringed, where the order is without jurisdiction, or where natural justice has been violated.

10. Moulding of relief. Both articles empower the court to issue "directions or orders" as well as writs, so it may grant whatever relief the case requires, including compensation (Rudul Sah v. State of Bihar, 1983).
11. Alternative forum and forum conveniens, where more than one High Court has territorial jurisdiction under Article 226(2).

6. Limits

Article 361 protects the President and Governors. Articles 122 and 212 bar inquiry into the internal proceedings of the legislatures. The writ jurisdiction is part of the basic structure: the Forty-second Amendment's attempt to curtail Article 226 was reversed by the Forty-third and Forty-fourth Amendments.

3. Original jurisdiction, and exclusive: disputes between the Federation and a Province or State or between Provinces or States, so far as they involved a question of law or fact on which the existence or extent of a legal right depended. Only a declaratory judgment could be given.
4. Appellate jurisdiction: from a High Court where it certified a substantial question of law as to the interpretation of the Act of 1935 or of an Order in Council. Widened by the Federal Court (Enlargement of Jurisdiction) Act, 1947, which transferred the Privy Council's civil appellate jurisdiction.
5. Advisory jurisdiction: the Governor-General could refer a question of law of public importance.
6. It was not the final court. An appeal lay from it to the Privy Council in London.

B. The High Courts (sections 219 to 234)

1. Continued as courts of record with such jurisdiction as they already had.
2. Appointment by His Majesty; no fixed strength; retirement at 60; removal by His Majesty on a report of the Privy Council.

1. The Supreme Court (Article 124), constituted 28 January 1950, replacing the Federal Court and inheriting the Privy Council's jurisdiction. Original (Article 131), writ (Article 32), appellate (Articles 132 to 134), special leave (Article 136), advisory (Article 143), review (Article 137), court of record (Article 129); its law binds all courts (Article 141) and it may do complete justice (Article 142). It is final.
2. The High Courts (Articles 214 to 231): one for each State, or a common one for two or more; a Chief Justice and such judges as the President appoints, with no ceiling since the Seventh Amendment, 1956; appointment under Article 217 with the collegium's primacy; qualification ten years' judicial office or ten years as an advocate, and citizenship of India; retirement at 62; removal only by an address of both Houses for proved misbehaviour or incapacity; transfer under Article 222 in the public interest only; salaries charged on the Consolidated Fund (Articles 202(3)(d), 221, 229(3)); writ jurisdiction under Article 226 for Fundamental Rights and any other purpose; superintendence under Article 227, unrestricted; court of record under Article 215; and control of the subordinate judiciary under Articles 233 to 235.

3. The independence of judges was secured: removal by Parliament instead of at the Crown's pleasure, the collegium in appointments, salaries charged on the Consolidated Fund, and control of the subordinate judiciary taken from the provincial executive and given to the High Court.
4. There were now Fundamental Rights to enforce, which gave the courts a jurisdiction they had never had.