BLS LLB 5 Years Sem 3 History of Courts 2022-23 - ATKT Question Paper with Solutions

Dyarchy, or diarchy, means rule by two: a system in which the executive authority in a government is divided between two sets of persons responsible in different ways.

It was introduced in the provinces by the Government of India Act, 1919, on the recommendation of the Montagu-Chelmsford Report. Provincial subjects were divided into "transferred" subjects, such as education, local self-government and public health, administered by the Governor with ministers responsible to the elected legislature, and "reserved" subjects, such as law and order, police, land revenue and justice, administered by the Governor with his Executive Council, who were not responsible to the legislature.

Lord Cornwallis, Governor-General from 1786 to 1793, through the Cornwallis Code of 1793.

He established it in two ways. He separated the judiciary from the executive, taking all judicial power from the revenue Collector and giving each district a District Judge with no revenue duty; and he made the Government itself suable in its own courts, so that the Company and its officers could be sued in the Diwani Adalats and judgment given against them. Subjecting the executive to the ordinary courts is the essence of the Rule of Law.

The main objective was to bring the East India Company's Indian administration under the control of the British Parliament, after the Company's misgovernment of Bengal, the famine of 1770 and its own near-bankruptcy had forced it to apply to the Government for a loan.

To that end it centralised the government in India by creating a Governor-General of Fort William with a Council of four, subordinating Bombay and Madras in matters of war and peace; authorised the Crown to establish a Supreme Court at Calcutta; and attacked corruption by forbidding the Company's servants to trade privately or accept presents.

The main outcome was the establishment of official, authoritative law reporting in India, and with it the working of the doctrine of precedent.

The Act required the judgments of the High Courts to be published in an authorised series, the Indian Law Reports, and provided that no court should be bound to hear cited, as an authority, any report of a High Court decision other than a report published under the authority of the Government.

Law reform, carried on through two instruments working in parallel:

1. through the legislatures, principally by the Law Commission of India, which reviews the law, recommends the repeal of the obsolete and the amendment of the defective, and annexes a draft Bill to almost every report; and
2. through the courts, principally by judicial precedent, since under Article 141 the law declared by the Supreme Court binds all courts and a decision may follow, distinguish or overrule what went before, and by public interest litigation, which brings before the courts questions the legislature has not reached.

Meaning

Mandamus means "we command". It is an order issued by a superior court to a public authority, corporation, inferior court or tribunal, commanding it to perform a public duty which it is legally bound to perform and has failed or refused to perform.

In India it is issued by the Supreme Court under Article 32, for the enforcement of Fundamental Rights, and by the High Courts under Article 226, for Fundamental Rights and for any other purpose.

Conditions for its issue

1. A legal right in the applicant. He must show a right in himself to have the duty performed.
2. A corresponding public duty in the respondent, imposed by statute, by the Constitution, by common law or by charter. The duty must be public, not merely private or contractual.
3. A demand and a refusal. The applicant must first have called on the authority to do its duty and been refused, expressly or by conduct.

5. To compel a discretion to be exercised in a particular way, though it lies to compel the authority to exercise its discretion where it has refused to apply its mind at all.
6. Where the duty is merely discretionary and not obligatory, or where the order would be futile.

Kinds

Mandamus proper, commanding performance; and the writ of continuing mandamus, developed by the Indian courts, by which the court keeps a matter on its file and issues successive directions to ensure that an authority carries out its duty over time, a device much used in public interest litigation.

Its relation to the other writs

Mandamus commands; certiorari quashes; prohibition forbids. Mandamus is the only one of the five that compels an authority to act; the others stop or undo what has been done. Where an authority has both refused to perform a duty and made an unlawful order, mandamus and certiorari may issue together.

1. It gave India the doctrine of precedent. Its decisions bound every Indian court, and through it stare decisis, the citation of authority and the distinction between ratio and obiter became the method of Indian law.
2. It settled Hindu and Muslim personal law. For a century it decided the leading questions of coparcenary, partition, adoption, succession, endowment and waqf, and its rulings became the working text of personal law.
3. It introduced justice, equity and good conscience as the residual rule where no statute or personal law applied.
4. It kept the law uniform across an empire of several High Courts at a time when India had no apex court of its own.
5. It set a standard of judicial quality, being staffed by the leading English lawyers of the day.
6. It trained the Indian Bar, whose leaders appeared before it and returned with the methods of the English Bar.
7. It is the ancestor of the Supreme Court of India, which inherited both its jurisdiction and its method.

Meaning

The independence of the judiciary means that judges must be free to decide according to law and their own judgment, without fear of or favour from the executive, the legislature, the parties or public opinion. It is independence for a purpose: so that a court can decide against the government.

Why it is necessary

1. The government is a party in a very large proportion of litigation, and no one may judge his own cause.
2. Fundamental Rights are enforceable only through courts the executive cannot reach (Articles 32 and 226).
3. The judiciary is the umpire of the federation (Article 131) and the guardian of the Constitution.
4. The Rule of Law requires that the legality of official action be determined by someone other than the official.

The safeguards in the Constitution

1. Article 50: the State shall separate the judiciary from the executive in the public services.

10. Control over the subordinate judiciary vested in the High Court (Articles 233 to 235).
11. Independence of the judiciary is part of the basic structure.

Limits and criticism

Independence is not unaccountability: a judge is removable for proved misbehaviour, his decisions are subject to appeal, and his judgments are open to criticism. The criticism runs the other way, that the collegium is opaque and answerable to nobody, that vacancies go unfilled, and that between "no misbehaviour" and "removal by Parliament" there is no workable mechanism for misconduct short of the gravest.

Case law

Delhi Judicial Service Association v. State of Gujarat (1991): the Supreme Court's power under Article 129 extends to punishing contempt of subordinate courts. Supreme Court Bar Association v. Union of India (1998): the contempt power does not allow the Court to debar an advocate from practice, that being for the Bar Councils.

Courts of record in Indian history

1. The Mayor's Court of 1687 at Madras was expressly a court of record.
2. The Mayor's Courts of 1726 were courts of record, and this is one reason the Company petitioned the Crown for them: a Company court's decree was of doubtful value in England, while a Crown court's record was provable and enforceable there.
3. The Supreme Court at Calcutta (1774) was a court of record with the prerogative writs.
4. The Act of Settlement, 1781 made the Sadar Diwani Adalat a court of record with an appeal to the King-in-Council, giving the Company's own appellate court a proper standing for the first time.
5. The High Courts under the Act of 1861 were courts of record, and Article 225 continued them.

(a) The main issue

The main issue was whether the Supreme Court had jurisdiction over the Company's Indian officers and servants in the mofussil for acts done in the course of their official duty.

That single issue contains three questions the Regulating Act, 1773 had left unanswered:

1. Were the Kazi and Muftis, as law officers of a Provincial Council, persons "employed by" the Company and so within the Court's jurisdiction?
2. Was Bahadur Beg, as a farmer of land revenue, within it?
3. Could acts done in a judicial or official capacity in the districts be tried at Calcutta by a court applying English law?

A subsidiary issue, on which the Court was plainly right, was whether the Council's procedure, deciding a title to property on a report by officers who had themselves seized the property and without trying the issue, was lawful at all.

5. It led to a parliamentary inquiry by a Select Committee of the House of Commons.
6. It produced the Act of Settlement, 1781, whose provisions answer it directly: judicial officers of the country courts protected for acts done in their judicial capacity; the Governor-General and Council exempted for official acts; revenue matters excluded; no man within the Court merely as a zamindar or farmer of revenue; Hindu and Muslim personal law applied in inheritance and succession; and the Sadar Diwani Adalat made a court of record.

3. The Court issued process for the Raja's arrest.
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 hid. The Court sent its Sheriff with an armed party, and it was alleged that his house and a place of worship were violated in the search.
6. The Council sent sepoys, who seized the Sheriff and his men, confined them, brought them to Calcutta, and released the Raja.
7. The Court then entertained an action by Cossinath against the Governor-General and members of Council personally, and against the commanding officer; they refused to appear, denying the Court's 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), and on its report Parliament passed the Act of Settlement, 1781.

(b) The conflict

The settlement

The Act of Settlement, 1781 exempted the Governor-General and Council for official acts; 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; directed the application of Hindu and Muslim law; and made the Sadar Diwani Adalat a court of record with an appeal to the King-in-Council.

4. Kamaluddin applied to the Supreme Court at Calcutta for a writ of habeas corpus, contending that his accounts were disputed, 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 and, on the return made by the Revenue Council, held the facts stated to be defective, that is insufficient in law to justify the detention.
6. It laid down that where the account is disputed a person must be admitted to bail until the enquiry into his obligation is complete; that the ostensible holder is not to be imprisoned until the under-renter has been called on and proved insolvent; and that a return to habeas corpus must state facts which in law justify the detention.
7. Kamaluddin was released on bail.

b) The effects of the judgement

1. It asserted the Supreme Court's jurisdiction over revenue matters and over the Company's revenue officers, which the Council regarded as an intrusion into the department on which the Company's existence in Bengal depended.

(a) What was the defence taken by him in the present case? (b) What was the decision taken by the Supreme Court?

The case

This is the Swaroop Chand case, the companion of the Kamaluddin case set at Q17 of this same paper, and decided on identical principles.

(a) The defence taken

1. The account was disputed and unsettled. The sum said to be due had never been determined by any judicial enquiry, so until it was, no ascertained sum was owing from him.

2. That a surety, or an ostensible holder, is not to be imprisoned until the person primarily liable has been called on and proved insolvent.
3. That the Court had jurisdiction to examine the legality of the confinement, the liberty of the subject being in question, and that the return made by the revenue authorities was defective.

The consequences

The Council protested that the decision struck at the collection of the revenue. The conflict, with the Kamaluddin, Patna and Cossijurah cases, went before a parliamentary Select Committee, and the Act of Settlement, 1781 expressly excluded revenue matters, and acts done in the collection of the revenue, from the Supreme Court's jurisdiction.

For full marks, cover: the Charter of 1687, the Charter of 1726 with constitution and jurisdiction, how the court worked in practice, the causes and instances of the conflict, the Charter of 1753, and an assessment.

1. The Mayor's Court of 1687

The Charter of 1687, granted by the Company under powers from James II, established at Madras a Corporation of a Mayor, twelve Aldermen and sixty or more Burgesses, with a Mayor's Court trying civil and criminal causes as a court of record, deciding summarily according to justice and good conscience, assisted by a Recorder learned in the law, with an appeal to the Admiralty Court. It was a Company court, and Indians sat on the Corporation as Aldermen and Burgesses.

2. The Mayor's Court of 1726

The Company petitioned the Crown for courts whose decrees would be recognised in England, and George I granted the Charter of 1726.

2. The Charter gave no direction on the law applicable to Indians, so English rules of inheritance, marriage and property were applied to Hindus, Muslims and Parsis for whom they were unsuited.
3. The Mayor and Aldermen were the Company's own servants, so a suit against the Company or a senior servant came before men subordinate to the defendant.
4. Procedure was English, technical and slow, and there was no legal profession provided for.
5. Its records were nevertheless careful, and for the Presidency towns it was the first settled civil justice available.

4. The conflict with the Governor-in-Council

Structural causes.

1. Two authorities from two sources. The Court held a royal charter and considered itself the King's court; the Governor-in-Council was the Company's government. Neither charter ranked one above the other.
2. The Governor-in-Council's triple role: executive government, appellate court from the Mayor's Court, and, as Justices of the Peace, the criminal court.

The instances. At Madras, over the claim to try suits between Indians touching caste and religious usage. At Bombay, in its sharpest form, on the same question. At Calcutta, over process against Company servants. There were also disputes over precedence and ceremony, trivial in appearance but about status. The recurring pattern was that the Mayor's Court would consult the Governor-in-Council on its own jurisdiction, the Council would uphold it in terms but object to the ground of the claim, and the Court would hold the objections not substantial and decree the suit.

5. The Charter of 1753

The Crown settled the conflict in the Governor's favour:

1. The Mayor and Aldermen were thereafter appointed by the Governor-in-Council, destroying the Court's independence at a stroke.
2. Suits between Indians were excluded unless both parties expressly submitted, removing the caste and religion disputes.
3. A Court of Requests was created for small causes up to 20 pagodas.
4. The Mayor's Court became in substance a Company court.

For full marks, cover: the High Courts under the Act of 1935 with their features, the position under the Constitution, a comparison in table form, and an assessment of what survived and what changed.

Part 1: The High Courts under the Government of India Act, 1935

The Act continued the High Courts established by the Indian High Courts Act, 1861 and the Letters Patent, and dealt with them in sections 219 to 234.

1. Status: courts of record, with such jurisdiction as they already had, subject to the Act.
2. Composition: a Chief Justice and such other judges as His Majesty thought fit to appoint. No fixed strength.
3. Appointment: by His Majesty, that is by the Crown on the advice of the Secretary of State for India. No consultation with any Indian judicial authority.

9. Appeal: to the Federal Court on a substantial question of interpretation of the Act, and to the Privy Council in London.
10. Administrative control over subordinate courts was shared with the Provincial Government, and the District Magistrate exercised both executive and judicial functions.

Part 2: The courts of India in the present times

1. The Supreme Court (Article 124), constituted 28 January 1950, replacing the Federal Court and inheriting the Privy Council's jurisdiction: original (131), writ (32), appellate (132 to 134), special leave (136), advisory (143), review (137), court of record (129); its law binds all courts (141) and it may do complete justice (142). It is final.

2. Article 226 universalised the writ jurisdiction, which had been the privilege of three cities; before it, a litigant in a district had no writ remedy against any authority whatever. This is the single largest change.
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.
4. There were now Fundamental Rights to enforce.

2. The Crown's courts

The Supreme Courts at Calcutta (1774), Madras (1801) and Bombay (1823), each with a Chief Justice and three puisne judges who had to be English barristers of five years' standing, appointed by the Crown. Jurisdiction: civil, criminal, equity, ecclesiastical and admiralty, and the prerogative writs, over British subjects, the Company's servants and Indians who submitted or resided in the town. Appeal to the King-in-Council. Law: English law, subject to the Act of Settlement, 1781's direction to apply personal law in inheritance, succession and contract.

3. The Company's courts

Civil: the Munsif and Sadar Amin courts; the District Diwani Adalat under a District Judge (Cornwallis Code, 1793); the Provincial Courts of Appeal; and the Sadar Diwani Adalat, with an appeal to the King-in-Council in high-value suits. Criminal: the Magistrates; the Courts of Circuit (1790, abolished by Bentinck in 1829), their work passing to the Commissioners of Revenue and Circuit; and the Sadar Nizamat Adalat.

1. Conflict of jurisdiction, with no common superior in India.
2. Different law for the same dispute, so the result turned on which court took the case.
3. Forum shopping.
4. Executive influence in the Company's courts, whose highest civil court, the Sadar Diwani Adalat, was the Governor-General and Council sitting as a court.
5. English law unsuited to those it governed in the towns; uncertain personal law in the districts.
6. Delay and heavy arrears.
7. No uniform precedent, the two appellate lines being separate.

6. The reform movement, 1834 to 1861

1. Charter Act of 1833: a Governor-General of India with legislative power for the whole of British India, a Law Member (Macaulay), and provision for a Law Commission.
2. First Law Commission (1834): the draft Indian Penal Code (1837) and the Lex Loci Report (1840).

For full marks, cover: the origin briefly, the pre-independence Commissions in outline, then the post-independence Commission in detail: its nature, terms of reference, method, major reports and results, limitations, and an assessment.

1. Origin

The Law Commission is a creature of the Charter Act of 1833, which created a Governor-General of India with legislative power over the whole of British India, added a Law Member to his Council, and empowered the appointment of a Law Commission to inquire into the courts, the laws and the jurisdictions in force.

Terms of reference. To review existing laws, repealing the obsolete and reforming the defective; to examine the judicial administration and suggest improvements for speedy and cheap justice; to consider references from the Government and the Supreme Court; to examine the law in the light of the Directive Principles; and to keep Indian law abreast of developments abroad.

Method. It selects a subject or takes a reference; issues a consultation paper; consults the Bench, the Bar, universities, government and the public; and publishes a report with a draft Bill annexed, which is what makes its reports usable.

4. Major reports and results

1. Fourteenth Report (1958), Reform of Judicial Administration: the most influential of all, the foundation of the Advocates Act, 1961, of the Legal Services Authorities Act, 1987, and of much reform of court administration.
2. First Report (1956) on the Liability of the State in Tort.
3. Forty-first Report (1969) on the Code of Criminal Procedure, on which the Code of Criminal Procedure, 1973 was based, including the separation of the judicial from the executive magistracy.

6. Limitations

It is non-statutory and advisory, so it cannot compel action; it is constituted by the executive, so its agenda is not independent; there are often long gaps between Commissions; it has no power to review the working of its own reforms; and its recommendations on politically contentious subjects tend not to be implemented.

7. Assessment

The Law Commission is the principal institutional engine of law reform in India, and has been so for nearly two centuries under two very different constitutions. The pre-independence Commissions gave India the codes, and with them a single legal system and a unified judiciary; the modern Commissions have given it the Advocates Act, the Code of Criminal Procedure, 1973, legal aid, and a continuous expert critique of its own laws. Its weakness, that it can only recommend, is inseparable from its strength, that it is expert and detached rather than political.