BLS LLB 5 Years Sem 3 History of Courts 2025-26 Question Paper with Solutions

The Rule of Law means that the country is governed by law and not by the arbitrary will of any person or office: every act of government must be authorised by law, and everyone, from the highest official to the ordinary citizen, is subject to the same law administered by the same courts.

The classic statement is A. V. Dicey's, in Introduction to the Study of the Law of the Constitution (1885), where it carries three limbs: absence of arbitrary power, equality before the law, and a constitution that is the result of the ordinary law of the land as worked out by the courts.

In India the principle is given effect chiefly by Article 14 (equality before the law and equal protection of the laws), and it is part of the basic structure of the Constitution.

The Supreme Court of Judicature at Fort William in Calcutta was established by the British Crown, that is by King George III, by a Royal Charter dated 26 March 1774, issued under the authority given to the Crown by section 13 of the Regulating Act, 1773.

The Court began working at Calcutta in October 1774. Its first Chief Justice was Sir Elijah Impey, with Robert Chambers, Stephen Caesar Lemaistre and John Hyde as puisne judges.

The Regulating Act, 1773 (13 Geo. III c. 63) was the first intervention by the British Parliament in the Company's Indian administration, and it is the beginning of parliamentary control over British India.

Its significance lies in three changes: it created the office of Governor-General of Fort William in Bengal with a Council of four, and subordinated Bombay and Madras to him in matters of war and peace; it authorised the Crown to establish the Supreme Court at Calcutta; and it attacked corruption by forbidding the Company's servants to trade privately or to accept presents.

The Sadar Diwani Adalat was the chief appellate civil court of the Company's territories in Bengal, Bihar and Orissa, established at Calcutta under the Judicial Plan of 1772.

Its function was to hear appeals from the Mofussil Diwani Adalats in civil suits above a fixed value, originally Rs 500, and to supervise the working of those courts. It was presided over by the Governor (later Governor-General) and two members of his Council, assisted by Indian law officers.

3. In each district a Mofussil Faujdari Adalat was set up for criminal causes, held by the Kazi and Mufti with the Collector supervising to see that the proceedings were fair.
4. At Calcutta, the Sadar Diwani Adalat, consisting of the Governor and two members of Council, heard civil appeals above Rs 500; the Sadar Nizamat Adalat, under an Indian judge (the Daroga-i-Adalat) supervised by the Governor and Council, heard criminal appeals.
5. Small Cause Adalats decided petty suits up to Rs 10 in the pargana.
6. In suits of inheritance, marriage, caste and religious usage, the law applied was to be the law of the Koran for Muslims and the Shastra for Hindus. This is the origin of the personal law rule that survives today.

The Plan of 1774

The 1772 plan failed for one reason: the Collector was both revenue collector and judge, and the litigant before him was the man he taxed. The Collectors were recalled. The districts were grouped into six divisions, each with a Provincial Council, and the Diwani Adalat in each district was placed under an Indian officer, the Diwan or Amil, with appeals to the Provincial Council.

For full marks, cover: original, writ, appellate, advisory and special jurisdiction, plus Articles 141 and 142.

1. Original jurisdiction (Article 131)

Exclusive jurisdiction in disputes between the Union and one or more States, or between States, where the dispute involves a question of law or fact on which the existence or extent of a legal right depends. It does not extend to disputes arising out of a treaty or agreement entered into before the Constitution which continues in operation.

2. Writ jurisdiction (Article 32)

The Supreme Court may issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of Fundamental Rights. The right to move the Court under Article 32 is itself a Fundamental Right, which Dr Ambedkar called the "heart and soul" of the Constitution.

3. Appellate jurisdiction

5. Advisory jurisdiction (Article 143)

The President may refer to the Court a question of law or fact of public importance, or a dispute arising out of a pre-Constitution treaty or agreement. The opinion is not binding on the President, and in a reference of the first kind the Court may decline to answer.

6. Article 141 and Article 142

Article 141: the law declared by the Supreme Court is binding on all courts within India. Article 142: the Court may pass any decree or order necessary for doing complete justice in a cause before it. The Court is also a court of record under Article 129, with power to punish for contempt of itself.

3. Disclosing the client's confidences.
4. Failure to attend court or gross negligence in conducting the case.
5. Attempting to influence a judge, or making scandalous allegations against the court.
6. Advertising or soliciting work, directly or indirectly.
7. Taking up a brief on a contingent fee, that is a fee dependent on the result.
8. Conduct outside the profession which nevertheless shows unfitness, which is what "or other misconduct" in section 35 covers.

Procedure and punishment

The Disciplinary Committee of the State Bar Council gives the advocate and the Advocate-General an opportunity of being heard, and may then:

1. dismiss the complaint;
2. reprimand the advocate;
3. suspend him from practice for such period as it thinks fit; or
4. remove his name from the State roll.

Before the British courts

Under the Mughal system a litigant could be represented by a vakil, but the vakil was closer to an agent than to a lawyer: he was appointed by the party, was not a member of any organised profession, and had no training the state recognised.

The Mayor's Courts and the Supreme Courts

The Charter of 1726, which set up the Mayor's Courts, made no provision at all for a legal profession, and untrained men practised in them. When the Supreme Court at Calcutta was established in 1774, its Charter allowed it to admit advocates and attorneys, but by rule these were confined to British barristers and British attorneys. Indians could not practise in the Crown courts of the Presidency towns, however learned they were. This exclusion is the central fact of the answer.

5. Indian Bar Councils Act, 1926: established Bar Councils for the High Courts and gave the profession a measure of self-government, though it did not unify the grades.
6. Advocates Act, 1961: abolished the distinctions altogether and created one Bar for the whole of India with a single right to practise.

Assessment

The story is one of movement from exclusion to equality. An Indian practitioner began outside the Crown courts entirely, was admitted first to the Company's courts under a regulated and inferior status, then to the High Courts, and finally to a unified profession in which no distinction of race or grade survives.

The court that has jurisdiction

The Mayor's Court at Madras, sitting under the Charter of 1726, has jurisdiction to try the suit.

Why

1. The Charter of 1726 created this Court as a Crown court. It was granted by George I and it established a Mayor's Court in each of the three Presidency towns, Madras, Bombay and Calcutta. Because it was created by royal charter and not by the Company, its judgments carried the authority of the Crown and an appeal lay ultimately to the King-in-Council.
2. Its jurisdiction was over all civil suits arising within the Presidency town and the subordinate factories. The test in 1726 was territorial, not racial: the Charter did not exclude Indians, so a suit between British merchants and an Indian trader arising in Madras falls squarely inside it.

The issue

Whether a statute conferring immunity from criminal prosecution on ministers while in office is consistent with the Rule of Law and with Article 14 of the Constitution.

The principle applied

1. Equality before the law. Dicey's second limb is that every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. A law that puts a class of persons beyond the reach of the criminal law for the period of their office contradicts that limb directly. In India it is given effect by Article 14.

4. The Constitution's own scheme is the strongest argument. The Constitution itself grants immunity where it intends to, and it does so sparingly and expressly: Article 361 protects the President and Governors, and Articles 105 and 194 protect members of legislatures for what they say and vote in the House. The Constitution grants no such immunity to a minister. A statute cannot create for a minister an exemption the Constitution deliberately withheld.
5. The Rule of Law is part of the basic structure, held in Indira Nehru Gandhi v. Raj Narain (1975), where a constitutional amendment placing the Prime Minister's election beyond judicial scrutiny was struck down. That case is on all fours with this one in principle: what was condemned there was removing a named authority from the ordinary adjudicatory process.

Decision

The law should be struck down as violating Article 14 and the Rule of Law, which is part of the basic structure. If the object is to protect ministers from frivolous prosecution, that object can be achieved by a narrower and reasonable provision, such as a requirement of prior sanction for acts done in the discharge of official duty, which does not put the minister above the criminal law itself.

2. A transfer must be in the public interest and must never be punitive. In Union of India v. Sankalchand Himatlal Sheth (1977) the Supreme Court held that the power of transfer can be exercised only in the public interest and not by way of punishment. A transfer made to punish a judgment is a colourable exercise of power and is void.
3. Judicial review. A transfer order is open to challenge on the ground that it was not made on the recommendation of the collegium, or that it was made for an extraneous purpose. Judicial independence is itself part of the basic structure.
4. The judge's office is otherwise secure. He cannot be removed except by the process in Article 217(1)(b) read with Article 124(4), that is by an order of the President after an address by both Houses supported by a special majority, on the ground only of proved misbehaviour or incapacity. A transfer cannot be used to achieve indirectly what removal could not achieve directly.

The problem to be cured

Before 1861 there were two parallel systems of courts: the Crown courts in the Presidency towns, that is the Supreme Courts, which applied English law and were created by royal charter, and the Company's courts in the mofussil, the Sadar Diwani and Sadar Nizamat Adalats and the courts under them, which applied Hindu and Muslim personal law and the Regulations. Their jurisdictions overlapped, their appellate lines were separate, and the same dispute could be decided differently according to which system took it. Uniformity of justice was the object; the plurality of courts was the obstacle.

The reforms I would recommend

1. Amalgamate the two systems into one court in each Presidency. Abolish the Supreme Court and the Sadar Adalats and vest all their jurisdiction, original and appellate, civil and criminal, in a single High Court. One court at the head of the province removes the conflict of jurisdiction at its source. (This is what the Act did.)

6. Codify the substantive and procedural law the new court will apply. A single court applying an uncertain law produces uniform machinery and varying results. The Indian Penal Code (1860), the Code of Criminal Procedure (1861) and the Code of Civil Procedure (1859) are the necessary companions of the Act, and I would recommend that the amalgamation follow them.
7. Preserve personal law in personal matters. Uniformity of forum should not mean uniformity of substantive personal law: in questions of inheritance, succession, marriage and religious usage, direct the court to apply the law of the party, as the Adalats had done since 1772. Otherwise amalgamation will be resisted as the imposition of English law.
8. Provide for law reporting. Uniformity depends on courts knowing what has already been decided, so require authorised reports of the High Courts' decisions. (This was achieved later, by the Indian Law Reports Act, 1875.)

For full marks, cover: the directive in Article 50, appointment, tenure, removal, salaries, discussion in the legislature, post-retirement practice, contempt powers, control over the subordinate judiciary, the separation effected by the Criminal Procedure Code, and the basic structure.

The principle

Separation of the judiciary from the executive means that those who decide disputes must not be the same persons, and must not be dependent on the persons, who govern. In Indian constitutional history the demand is old: it was the central defect of the Adalat system, where the Collector who taxed the litigant also judged him, and it was the reform for which Cornwallis is remembered.

The meaning of "consultation" is the whole battle. In the First Judges Case (S. P. Gupta, 1981) the Court gave the executive primacy. In the Second Judges Case (1993) it reversed itself and held that the opinion of the Chief Justice of India, formed collectively with a collegium of senior judges, has primacy. The Third Judges Case (1998) fixed the composition of the collegium at the CJI plus four senior-most judges for the Supreme Court. In Supreme Court Advocates-on-Record Association v. Union of India (2015) the Court struck down the Ninety-ninth Amendment and the National Judicial Appointments Commission Act, 2014, holding that the NJAC's composition impaired the primacy of the judiciary in appointments and therefore violated the basic structure.

3. Security of tenure

A judge of the Supreme Court holds office until the age of 65 (Article 124(2)) and of a High Court until 62 (Article 217(1)). He cannot be removed at the pleasure of the executive.

6. Conduct not open to discussion

Article 121 forbids discussion in Parliament, and Article 211 in a State legislature, of the conduct of a judge of the Supreme Court or of a High Court in the discharge of his duties, except on a motion for his removal.

7. No practice after retirement

Article 124(7) bars a retired judge of the Supreme Court from pleading or acting before any court or authority in India. Article 220 bars a retired judge of a High Court from practising before that court or before any court or authority subordinate to it, though he may appear in the Supreme Court and in other High Courts.

8. Power to punish for contempt

The Supreme Court under Article 129 and every High Court under Article 215 is a court of record with power to punish for contempt of itself. The courts can therefore protect their own authority without applying to the executive.

Assessment

Taken together, the provisions insulate the judge at every point at which pressure could be applied: how he is chosen, how long he sits, how he may be removed, what he is paid, whether he may be criticised in the legislature, what he may do afterwards, and who controls his subordinates. What the Constitution does not do is separate functions absolutely: the judiciary makes rules, the executive appoints judges, and the President exercises a power of pardon which is in substance judicial. The Indian scheme is one of checks and balances, not of a rigid separation of powers.

1. A unified Bar and a single class of practitioner

The Act abolished all the older grades and recognised one class of legal practitioner, the advocate. The distinction between counsel and solicitor, and between the different provincial grades, disappeared.

2. The Bar Councils

1. State Bar Councils (section 3) for each State, consisting of elected advocates, with the Advocate-General as an ex officio member.
2. The Bar Council of India (section 4), consisting of members elected by the State Bar Councils, with the Attorney-General of India and the Solicitor-General of India as ex officio members.

Functions of a State Bar Council (section 6): to admit persons as advocates on its roll, to prepare and maintain the roll, to entertain and determine cases of misconduct, to safeguard the rights, privileges and interests of advocates, to promote and support law reform, to organise legal aid, and to manage its funds.

Section 24A disqualifies a person convicted of an offence involving moral turpitude, or convicted under the Untouchability (Offences) Act, or dismissed or removed from employment on a charge involving moral turpitude. The disqualification ceases two years after release or dismissal.

5. The right to practise (sections 29 to 33)

Section 29: advocates are the only class of persons entitled to practise the profession of law. Section 30: every advocate on a State roll is entitled as of right to practise throughout India, in all courts including the Supreme Court, before any tribunal, and before any authority before which he is entitled to practise. Section 33 bars any person other than an advocate from appearing before a court, except as otherwise provided.

This single right of audience across the country is the Act's most practical achievement.

Assessment

The Act's achievements are substantial: one profession in place of six grades, an all-India right of practice, self-government by elected Bar Councils, statutory discipline with an appeal to the Supreme Court, and control of legal education by the profession itself. Its weaknesses are those of self-regulation everywhere: disciplinary proceedings are slow, which is why section 36B had to impose a one-year limit; the Bar Councils are elected bodies and so exposed to the politics of election; and the standard of legal education, though the Bar Council's responsibility, has been uneven, which is what the National Law Universities and the Bar Council's All India Bar Examination have since attempted to address.

Case 1: The Patna Case (1777 to 1779)

Facts. Shahbaz Beg Khan, an Afghan in the Company's military service, settled at Patna and died without children, leaving considerable property. His widow, Naderah Begum, claimed the whole estate under a deed of gift (hibanama) said to have been made by her husband. His nephew, Bahadur Beg, claimed it as the deceased's adopted son and heir.

Bahadur Beg applied to the Patna Provincial Council, which referred the dispute to its law officers, the Kazi and two Muftis, to examine the parties and report. The law officers went to the house, seized the property, reported that the widow's deeds were forged, and on that report the Council decreed the estate to Bahadur Beg, allowing the widow only a one-fourth share as dower. The widow took refuge in a dargah and then sued in the Supreme Court at Calcutta against Bahadur Beg and the Kazi and Muftis for assault, battery, false imprisonment, breaking her house and depriving her of her property.

Issue. Whether the Supreme Court had jurisdiction over the native law officers of a Provincial Council and over a farmer of land revenue for acts done in the course of the Council's proceedings.

The Governor-General and Council, having taken the opinion of the Advocate-General, issued a general notification to all zamindars and landholders that they were not subject to the Supreme Court's jurisdiction unless they were actually employed by the Company or had submitted to it, and directed the Raja not to appear. The Raja evaded the process. The Court sent its Sheriff with an armed party to arrest him; the Council sent sepoys, who seized and confined the Sheriff and his men and released the Raja.

The Supreme Court then entertained an action by Cossinath against the Governor-General and the members of Council personally, and against the commanding officer, for the acts of the troops. The Governor-General and Council refused to appear, denying that the Court had any jurisdiction over them.

Issue. Whether the Supreme Court had jurisdiction over a zamindar merely as a landholder or revenue payer, and whether it could try the Governor-General and Council for acts done in their public capacity.

3. Persons were not to be subject to the Court merely because they were zamindars, landholders or farmers of revenue.
4. The judicial officers of the country courts were protected for acts done in their judicial capacity.
5. In suits against Indian inhabitants, the Court was to apply Hindu law to Hindus and Muslim law to Muslims in matters of inheritance and succession and in contract and dealings between party and party.
6. The Sadar Diwani Adalat was recognised as a court of record, with an appeal from it to the King-in-Council in high-value suits.
7. The Governor-General and Council were empowered to frame regulations for the provincial courts and councils.

For full marks, cover: the Charters of 1600, 1661, 1683, 1687 and 1726, the Charter of 1753, the Adalat system from 1772, the Regulating Act and the Supreme Court, the Act of Settlement, Cornwallis, the Charter Act of 1833 and codification, and the High Courts Act of 1861.

Phase 1: The trading company, 1600 to 1726

1. Charter of 1600. Queen Elizabeth I incorporated the Company and gave it power to make reasonable laws for its own government, not repugnant to English law, and to punish its servants for offences. This is a disciplinary power, not a judicial system.
2. Charter of 1661. Charles II empowered the Governor and Council of each factory to judge all persons under the Company, in all causes civil and criminal, according to the laws of England. English law and jurisdiction over Indians both enter here.

1. Charter of 1726. The Company petitioned the Crown, and George I granted a charter establishing a Mayor's Court in each of the three Presidency towns, Madras, Bombay and Calcutta, consisting of a Mayor and nine Aldermen. These were royal courts, deriving authority from the Crown, with an appeal to the Governor-in-Council and from there to the King-in-Council where the sum exceeded 1,000 pagodas. Criminal justice was given to the Governor and Council as Justices of the Peace, holding Quarter Sessions. The Charter also introduced English law as it stood in 1726 into the Presidency towns.
2. Charter of 1753. After repeated quarrels between the Mayor's Courts and the Governors, this charter made the Mayor's Court subordinate to the Governor-in-Council, which now appointed the Mayor and Aldermen; excluded suits between Indians unless both parties submitted; and created a Court of Requests for small causes.

Phase 3: The Company's courts in the mofussil, from 1772

1. The Diwani, 1765. By the Treaty of Allahabad the Company obtained the Diwani of Bengal, Bihar and Orissa, and with it responsibility for civil justice and revenue in the districts.

3. The conflict, 1775 to 1780. Nandkumar, Kamaluddin, the Patna case and the Cossijurah case exposed the undefined boundary between the Court and the Governor-General in Council.
4. Act of Settlement, 1781. Exempted the Governor-General and Council for official acts, excluded revenue matters, protected the judicial officers of the country courts, directed the application of personal law, and recognised the Sadar Diwani Adalat as a court of record.

Phase 5: Consolidation and reform, 1793 to 1833

1. Cornwallis, 1787, 1790 and 1793. The Code of 1793 separated the judiciary from the revenue administration, gave each district a District Judge, created four Provincial Courts of Appeal, made the Government suable in its own courts, and for the first time regulated the legal profession by enrolling vakils and fixing their fees.

2. Indian High Courts Act, 1861. Abolished the Supreme Courts and the Sadar Adalats and merged them into a High Court at Calcutta, Bombay and Madras, established by Letters Patent in 1862, each with a Chief Justice and not more than fifteen puisne judges drawn from prescribed classes. It also empowered the Crown to establish further High Courts elsewhere.
3. The codes. The Indian Penal Code, 1860, the Code of Criminal Procedure, 1861 and the Code of Civil Procedure, 1859 gave the new courts a uniform law to apply.

Assessment

The evolution has a clear direction. Judicial power moves from the Company to the Crown; the law moves from the uncertain to the codified; the courts move from many parallel systems to one hierarchy; and the judge moves from being a merchant or a revenue collector to being a professional. The year 1861 is the point at which those four lines meet, which is why the syllabus stops there: the High Court established that year is the direct ancestor of the High Court sitting today.

1. The scheme of 1787

For reasons of economy Cornwallis at first went the wrong way. The districts were reduced to about twenty-three, and in each the Collector was made judge of the Mal Adalat (revenue court) and of the Mofussil Diwani Adalat (civil court), and was also a Magistrate with power to try petty criminal cases and to commit serious ones to the Court of Circuit.

This concentrated revenue, civil justice and magistracy in one officer. It was cheap and it was quick, and Cornwallis himself soon concluded that it was indefensible: the man who assessed the revenue was deciding disputes about the revenue.

2. The criminal reforms of 1790

Criminal justice was still nominally the Nawab's, administered through the Faujdari Adalats and the Sadar Nizamat Adalat under his Naib Nazim. Cornwallis took it over.

1. The Mofussil Faujdari Adalats were abolished, and four Courts of Circuit were established for the divisions of Calcutta, Dacca, Murshidabad and Patna, each staffed by covenanted English servants, who went on circuit twice a year to try criminals committed to them by the Magistrates.

3. The Mal Adalats were abolished, and revenue disputes were transferred to the ordinary Diwani Adalats. This is the decisive step: a revenue claim by the government now went before the same judge as any other claim.
4. Government made suable in its own courts. The Company, and its officers in their official capacity, could be sued in the Diwani Adalats, and the courts could give judgment against the Government. Cornwallis expressly subjected the executive to the courts.
5. A hierarchy of civil courts was established: Munsif and Amin courts and the Registrar's court for small causes; the District (or City) Diwani Adalat; four Provincial Courts of Appeal at Calcutta, Dacca, Murshidabad and Patna; and above them the Sadar Diwani Adalat, with a further appeal to the King-in-Council in suits above £5,000.
6. Regulation of the legal profession. For the first time the profession was given a legal footing. The Sadar Diwani Adalat was to enrol vakils, only Hindus and Muslims being eligible; their fees were fixed by a scale; their duties were defined; and they could be dismissed for misconduct. Litigants were thus assured of qualified representation at a known price.

Defects

1. The exclusion of Indians from responsible office. Cornwallis believed the Company's Indian servants to be irredeemably corrupt, and confined all higher posts to covenanted Europeans. Indians could rise no higher than Munsif or Amin, and the judge who tried a suit generally knew neither the language nor the customs of the parties. This is the gravest criticism of the Code.
2. Delay and arrears. The new hierarchy, staffed by too few European judges, produced enormous backlogs in the Provincial Courts of Appeal.
3. Expense and inaccessibility. Courts were few and distant, and litigation became costly for the ordinary villager.
4. The judges were not lawyers. They were civil servants, however conscientious, applying a law of which many had no professional training.
5. Cornwallis's system was found in practice to be over-elaborate, and Lord William Bentinck later abolished the Provincial Courts of Appeal and the Courts of Circuit and restored some powers to the Collector, which shows that the balance struck in 1793 was not the final one.