BLS LLB 5 Years Sem 3 History of Courts 2023-24 - ATKT 60/40 Question Paper with Solutions

Diarchy, or dyarchy, 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.

Because it is the organ that keeps the other two within the law. It decides whether an act of the legislature or of the executive is within the powers the Constitution gives it, and it can strike down what is not.

It is also the organ to which the individual citizen goes when a right is infringed: under Articles 32 and 226 a single person can compel the State to answer for its conduct, so the judiciary is what converts a written guarantee of rights into a remedy.

The main objective is the reform of the law: to examine the existing law, to repeal what is obsolete and amend what is defective, and to recommend new law where it is needed.

The first Law Commission (1834) under Macaulay, appointed under the Charter Act of 1833, had the particular object of codifying the confused mass of Regulations, personal laws and English law then in force. The post-independence Commission, first constituted in 1955 under M. C. Setalvad, has the object of reviewing the law in the light of the Directive Principles and securing speedy and inexpensive justice.

Under section 24A of the Advocates Act, 1961, a person is disqualified from being admitted as an advocate if he:

1. is convicted of an offence involving moral turpitude;
2. is convicted of an offence under the Untouchability (Offences) Act, 1955; or
3. is dismissed or removed from employment or office under the State on a charge involving moral turpitude.

The disqualification ceases two years after his release or after the dismissal or removal.

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. This is its single most important function.
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.
7. It is the ancestor of the Supreme Court of India, which inherited both its jurisdiction and its method.

Criticism

It sat five thousand miles away, so appeals were slow and very costly and served in practice the rich and the Government; its judges had no direct knowledge of Indian conditions, and some decisions are criticised for freezing custom into rigid rules; and it was a foreign court administering the law of a country in which it did not sit.

Constitution

A State Bar Council is constituted under section 3 for each State or group of States, of the Advocate-General as an ex officio member and fifteen to twenty-five advocates elected from those on the State roll. Members hold office for five years, and the Council elects its own Chairman and Vice-Chairman.

Functions under section 6

1. To admit persons as advocates on its roll.
2. To prepare and maintain such roll.
3. To entertain and determine cases of misconduct against advocates on its roll.
4. To safeguard the rights, privileges and interests of advocates on its roll.
5. To promote and support law reform.
6. To conduct seminars and organise talks by eminent jurists, and to publish journals and papers of legal interest.

The disciplinary function

Under section 35, where the 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, which, after hearing the advocate and the Advocate-General, may dismiss the complaint, reprimand, suspend from practice, or remove the name from the roll. A suspended advocate is debarred from practising anywhere in India for the period. The Committee has the powers of a civil court (section 42). Appeals lie to the Bar Council of India (section 37) and thence to the Supreme Court (section 38), and under section 36B a proceeding not concluded within one year stands transferred to the Bar Council of India.

Significance

The State Bar Council is the body through which the profession governs itself at the point of entry and at the point of discipline. Before 1961 both powers lay with the High Courts; the Act transferred them to elected bodies of advocates, and that transfer is the foundation of the independence of the Indian Bar.

In the United States

Adopted rigidly: legislative power in Congress, executive in the President, judicial in the courts; the President is not a member of Congress; and each checks the others through the veto, impeachment, Senate confirmation and judicial review.

In India

Followed in substance but not in rigid form.

Observed in: Article 50, separation of the judiciary from the executive in the public services; Articles 121 and 211, barring discussion of a judge's conduct in the legislatures; Articles 122 and 212, barring courts from inquiring into legislative proceedings; the security of tenure and salary of judges; and the division of judicial and executive magistrates by the Code of Criminal Procedure, 1973.

Departed from: ministers must be members of a House (Article 75(5)); the executive legislates by ordinance (Articles 123 and 213); the judiciary in effect legislates under Article 141 and makes rules under Articles 145 and 227; the legislature acts judicially in punishing for breach of privilege; and the President exercises the judicial power of pardon (Article 72).

Meaning

A court of record is a court whose acts and judicial proceedings are enrolled and preserved for perpetual memory and testimony. Two consequences follow, and they are the whole of the concept:

1. Its records are of the highest evidentiary value: they are admitted without question and their truth cannot be challenged in any court.
2. It has an inherent power to punish for contempt of itself, so it can protect its own authority without applying to any other body.

In the Constitution

Article 129: the Supreme Court shall be a court of record with all the powers of such a court including the power to punish for contempt of itself. Article 215: every High Court shall be a court of record with the same powers.

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.

Importance

It secures the certainty of the record, the authority of the court through the contempt power, and, historically, the recognition of Indian judgments abroad.

Describe the effects of the decision held in this case?

a) The facts

1. Shahbaz Beg Khan, an Afghan who had served in the Company's army, settled at Patna and acquired considerable property. He had no children.
2. He brought his nephew, Bahadur Beg, from Kabul, and was said to have intended to adopt him.
3. On his death, his widow, Naderah Begum, took possession of the estate, claiming under a deed of gift (hibanama) and a deed of dower.
4. Bahadur Beg claimed as adopted son and applied to the Patna Provincial Council.
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.

2. It provoked the Governor-General in Council, which protested that district officers had been made personally liable at Calcutta, under English law, for acts done in the discharge of their duty.
3. It brought the country courts to a standstill, no Kazi, Mufti or member of a Provincial Council being able to act while liable to be sued.
4. It raised the undefined question of the Supreme Court's jurisdiction over the Company's servants and Indian law officers.
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 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 and, on that advice, 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, directing 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 against the Governor-General and the members of Council personally; they refused to appear, denying its jurisdiction over them.
8. The Court's process having been defeated by force, the quarrel went to Parliament, which appointed a Select Committee, and Parliament then passed the Act of Settlement, 1781.

b) What the conflict was about

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.

4. Kamaluddin applied to the Supreme Court at Calcutta 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 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, the person really liable, 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.

Gorachand brought a suit in the Supreme Court against Hossiyar, the chief provincial Council. a.

What are the contentions of Gorachand Dutt before the Supreme Court? b.

What does the case reveal about the Supreme Court?

The case

This is the case of Gorachand Dutt, arising out of the Murshidabad Provincial Council. It belongs with the Patna case as one of the suits by which the Supreme Court at Calcutta took jurisdiction over the proceedings and the officers of the Company's own courts in the mofussil.

3. That an act done outside lawful authority is the officer's own. The decree being void, the Chief could not plead it as a defence and was personally answerable for the loss caused, the immunity of an officer extending only to acts within his authority.
4. That he was entitled to a remedy in damages, there being no appeal or other redress open to him against the Provincial Council's decree.

b) What the case reveals about the Supreme Court

1. That it read its own jurisdiction very widely. Treating the officers of a Provincial Council as persons "employed by the Company" brought the whole machinery of the mofussil administration within its reach, on words the Regulating Act had never defined.
2. That it was in effect reviewing the decisions of the Company's courts. No charter gave it appellate or supervisory jurisdiction over the Provincial Councils. By entertaining an action in tort against the officers who had decided a case, it achieved indirectly what it could not do directly.

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 there.

2. The difference

• Does not lie against a private person owing no public duty; to enforce a contract; against the President or a Governor (Article 361); against a legislature to restrain legislation; or to compel a discretion to be exercised in a particular way, though it lies to compel its exercise.

3. Prohibition: an order to an inferior court or tribunal forbidding it to proceed beyond its jurisdiction or in breach of natural justice. Preventive; available only while the proceeding is pending; lies only against judicial or quasi-judicial bodies.

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; 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, not held at another's pleasure; the holder must be in actual possession.

8. Futility: no writ will issue that would be infructuous or unenforceable.
9. Discretion: relief under Article 226 is discretionary; under Article 32 it cannot be refused once infringement of a Fundamental Right is shown.
10. Moulding of relief: both articles permit "directions or orders" as well as writs, so the court may grant whatever the case requires, including compensation (Rudul Sah v. State of Bihar, 1983; Nilabati Behera, 1993).

5. Limits

Article 361 protects the President and Governors; Articles 122 and 212 bar inquiry into legislative proceedings. The 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.

2. The salient features

1. Abolition of the existing courts: the Supreme Courts and the Sadar Diwani and Sadar Nizamat Adalats in the three Presidencies.
2. Establishment of High Courts. Her Majesty was empowered to establish, by Letters Patent, a High Court of Judicature at Calcutta, Madras and Bombay, in which the jurisdiction of both abolished systems was vested. The dual system was thereby ended.
3. Composition: a Chief Justice and not more than fifteen puisne judges, appointed by Her Majesty, holding office during Her Majesty's pleasure.
4. Qualifications, deliberately mixed: barristers of not less than five years' standing; members of the covenanted civil service of not less than ten years who had served three years as zila judge; persons who had held judicial office not inferior to that of principal Sadar Amin for five years; and pleaders of a Sadar Court or High Court of not less than ten years' standing. Not less than one-third of the judges, including the Chief Justice, were to be barristers, and not less than one-third members of the covenanted civil service.

3. The Letters Patent

Given effect by Letters Patent of 1862, re-issued in 1865, which constituted the three High Courts, defined their jurisdiction in detail, and provided for appeals from a single judge to a Division Bench, the Letters Patent Appeal still known by that name.

4. Later developments

The Government of India Acts of 1915 and 1935 continued the High Courts; the Act of 1935 left their strength to His Majesty, set retirement at 60, and narrowed superintendence by section 224(2). The Constitution continued them by Article 225, raised retirement to 62, universalised the writ jurisdiction by Article 226, and restored a wide power of superintendence by Article 227.

5. Assessment

What the Act achieved. It ended the dual system; gave each Presidency a single court at the head of one hierarchy; brought professional lawyers and experienced administrators onto the same bench; and created the institution that still exists, since the High Courts of Calcutta, Bombay and Madras sitting today are the courts this Act created.

For full marks, cover: the Charter of 1687, the Charter of 1726 with constitution and jurisdiction, how the court worked, the causes and instances of 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.

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.

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, and 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, and over the Governor's interference with process. 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.
2. Suits between Indians were excluded unless both parties expressly submitted.
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 position before 1961, the committees, the objectives as a numbered list, the machinery, the changes point by point, and an assessment.

1. The position before 1961

The profession was fragmented into grades with different rights of audience: advocates, vakils, pleaders, mukhtars, attorneys and barristers. Under the Legal Practitioners Act, 1879 and the Indian Bar Councils Act, 1926: a practitioner was enrolled in one High Court and had no right to appear in another; barristers, being English-qualified, enjoyed precedence and privileges the Indian vakil did not; the grades differed from province to province; discipline lay largely with the High Courts; and there was no national body to set standards of conduct or of legal education.

7. To entrust standards of legal education and the recognition of law degrees to the Bar Council of India.
8. To provide for legal aid and the welfare of advocates.

4. The machinery

State Bar Councils (section 3), which admit advocates, maintain the roll and discipline at first instance; and the Bar Council of India (section 4), which lays down standards of conduct and of legal education, recognises universities, hears appeals and makes rules under section 49.

5. How the Act changed the profession

1. One class of practitioner. Vakils, pleaders, mukhtars, attorneys and the special status of barristers were abolished; only advocates are recognised, with senior advocates under section 16 as the single surviving distinction.
2. An all-India right of practice. Under section 30, every advocate on a State roll may practise as of right throughout India, in all courts including the Supreme Court, before every tribunal and authority. This is the Act's most practical achievement.

8. Control of legal education under section 7(1)(h) and (i), from which came the five-year integrated LL.B. (1982), compulsory practical papers, and the All India Bar Examination (2010).
9. Legal aid and welfare became statutory functions of the Bar Councils.

6. Assessment

Achievements: a set of graded, provincial, partly foreign professions became a single national profession governing itself, and its independence from the executive is a real constitutional value, because a Bar that argues against the State for a living cannot safely be licensed by the State.

Criticisms: disciplinary proceedings are slow, which is why section 36B was inserted; the Bar Councils are elected, so regulation is exposed to the politics of Bar Council elections; and the standard of legal education, the Bar Council's statutory responsibility, remains very uneven across roughly 1,500 law colleges.