BLS LLB 5 Years Sem 3 History of Courts 2023-24 - ATKT 75/25 Question Paper with Solutions

The purpose of law reporting is to record and publish judicial decisions accurately, so that the principle laid down in a case can be found, cited and followed afterwards.

It exists because the Indian legal system works on precedent: under Article 141 the law declared by the Supreme Court binds all courts, and a rule cannot be followed unless the decision laying it down has been published. Reporting therefore gives the law certainty and uniformity and makes equality before the law possible, since like cases can be decided alike.

La Legalite is the French expression for the principle of legality, which is the Rule of Law: the doctrine that every act of government must have a basis in law, that nobody may be punished except for a distinct breach of law established before the ordinary courts, and that all persons are equally subject to the ordinary law.

It is the continental equivalent of the English Rule of Law, whose classical statement is A. V. Dicey's in Introduction to the Study of the Law of the Constitution (1885).

The principles of natural justice are the minimum standards of fair procedure which every authority deciding a matter affecting rights must observe. They are:

1. Nemo judex in causa sua, the rule against bias: no man may be a judge in his own cause, and the decision-maker must have no personal, pecuniary or official interest in the outcome, nor any real likelihood of bias.
2. Audi alteram partem, the right to be heard: no man may be condemned unheard. The party must have notice of the case against him, be given the material relied on, and have a fair opportunity to answer it.

A third principle, added by the modern Indian cases, is that the authority must give a reasoned or speaking order, so that the party knows why he lost and the decision can be reviewed.

Under the Charter of 1687, by which the Corporation of Madras was inaugurated on 29 September 1688, the corporation consisted of:

1. a Mayor;
2. twelve Aldermen; and
3. sixty or more Burgesses.

The Mayor and at least three of the Aldermen were to be English or British subjects; the remaining Aldermen and the Burgesses could be of any nationality, and Indians, Portuguese, Armenians and others were included. A Recorder, a person skilled in the laws of England, was to assist the court. The Mayor and Aldermen together constituted the Mayor's Court.

7. To recognise universities whose degree in law shall be a qualification for enrolment as an advocate, and for that purpose to visit and inspect them.
8. To conduct seminars and organise talks by eminent jurists and to publish journals and papers of legal interest.
9. To organise legal aid to the poor.
10. To recognise on a reciprocal basis foreign qualifications in law for the purpose of admission as an advocate.
11. To manage and invest the funds of the Bar Council.
12. To provide for the election of its members.

Other powers

Section 36: its Disciplinary Committee hears cases where the advocate is on no State roll and cases withdrawn to it. Section 36B: a proceeding not disposed of by a State Bar Council within one year stands transferred to it. Section 37: it hears appeals from the State Bar Councils' disciplinary committees. Section 49: it has a general power to make rules for discharging its functions, under which the Bar Council of India Rules on professional conduct and on legal education are made.

Establishment

The Supreme Court of Judicature at Fort William in Calcutta was established by a Royal Charter dated 26 March 1774, issued by George III under the authority of section 13 of the Regulating Act, 1773. It began sitting in October 1774.

Composition

A Chief Justice and three puisne judges, appointed by the Crown, who had to be English barristers of not less than five years' standing. The first bench was Sir Elijah Impey (Chief Justice), Robert Chambers, Stephen Caesar Lemaistre and John Hyde.

Jurisdiction

1. Civil: over all British subjects residing in Bengal, Bihar and Orissa; the servants of the Company; and any other person who submitted in writing to its jurisdiction in a matter exceeding 500 rupees.

How it actually worked

The Court's working is the story of its conflict with the Governor-General in Council, because the Regulating Act had defined neither its jurisdiction nor its relation to the Company's government:

1. Nandkumar (1775): an Indian was hanged for forgery under an English statute for an act done before the Court existed, in circumstances that made the trial notorious as a judicial murder.
2. Kamaluddin and Swaroop Chand (1775 onwards): the Court granted habeas corpus and bail to revenue farmers imprisoned for arrears, which the Council said made the collection of revenue impossible.
3. The Patna Case (1777 to 1779): the Court awarded Rs 3,00,000 against the Kazi and Muftis of the Patna Provincial Council for acts done in office, which paralysed the country courts.
4. The Cossijurah Case (1779 to 1780): the Council sent sepoys who seized the Court's own Sheriff, and then refused to appear when sued personally.

Meaning

The doctrine requires that the legislative, executive and judicial functions of government be exercised by three distinct organs, and that no organ exercise the functions of another or control the persons who do.

Origin

Traceable to Aristotle and Locke, its classical statement is by Montesquieu in De l'Esprit des Lois (1748). His argument was practical: power must be a check upon power, for when the legislative and executive powers are united in the same person there can be no liberty, and if the judicial power is joined to either, the judge becomes an oppressor.

Objects

To prevent the concentration of power and so tyranny; to secure individual liberty; to secure efficiency by specialisation; and above all to secure the independence of the judiciary.

The courts

Ram Jawaya Kapur v. State of Punjab (1955): the Constitution does not recognise the doctrine in its absolute rigidity, though the functions of the organs are sufficiently differentiated. Kesavananda Bharati (1973) and Indira Nehru Gandhi v. Raj Narain (1975): separation of powers is part of the basic structure.

Criticism

Absolute separation is impossible in a modern welfare State, where the executive must make rules and administrative bodies must decide disputes; it can produce deadlock; and no parliamentary system has ever had it.

3. The Mal Adalats were abolished and revenue disputes transferred to the ordinary Diwani Adalats, so that a revenue claim by the Government 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 judgment could be given against the Government. Subjecting the executive to the ordinary courts is the essence of the Rule of Law, and it is why Cornwallis is called its pioneer in India.
5. A complete hierarchy of civil courts: 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. By Regulation VII of 1793 the Sadar Diwani Adalat was to enrol vakils, only Hindus and Muslims being eligible; their fees were fixed by scale, their duties prescribed, and they were made liable to dismissal for misconduct. This is the first legal footing the profession had in India.

1. Indians were excluded from all responsible office. Cornwallis believed the Company's Indian servants to be irredeemably corrupt, so the higher posts were confined to covenanted Europeans, and Indians could rise no higher than Munsif or Amin. The judge who tried a suit commonly knew neither the language nor the customs of the parties. This is the gravest criticism of the Code, and it was reversed only by Bentinck in 1831.
2. Delay and arrears in the new hierarchy, staffed by too few European judges.
3. Expense and inaccessibility, the courts being few and distant.
4. The judges were not lawyers, but civil servants.
5. The system proved over-elaborate, and Bentinck later abolished the Provincial Courts of Appeal and the Courts of Circuit.

b) What were the consequences of the judgment given 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 as his son.
3. On Shahbaz Beg's death his widow, Naderah Begum, took possession of the estate, claiming under a deed of gift (hibanama) and a deed of dower executed by her husband in her favour.
4. Bahadur Beg claimed the estate as the adopted son and applied to the Patna Provincial Council, which had civil jurisdiction in the district.

1. It exposed the defects of the Company's judicial machinery. A Provincial Council had decided the ownership of an estate on a report by officers who had themselves seized the property, without trying the issue at all.
2. It provoked a bitter conflict with the Governor-General in Council, which protested that officers of the district administration had been made personally liable, at Calcutta, under English law, for acts done in the course of their duty.
3. It brought the country courts to a standstill. No Kazi, Mufti or member of a Provincial Council could act while liable to be sued in the Supreme Court.
4. It raised the question of the Supreme Court's jurisdiction over Company servants and native law officers, which the Regulating Act had left undefined.

In this case, the jurisdiction of the Supreme Court and right of the court to try action against the judicial officers of the company for an act done in their personal capacity was questioned. a) Describe the facts of the case.

b) What were effects of the decision held by the Supreme Court in this case?

Identifying the case

The description given, an action tried against the Company's judicial officers for what they did in the course of their office, is the holding of the Patna Case (1777 to 1779), and that case is answered first. Because this paper sets the Patna case separately at Q13, the Cossijurah Case (1779 to 1780) is given afterwards, since it is the other case in which the Court's jurisdiction was questioned and Calcutta was thrown into alarm. Write whichever your examiner's wording points to; the facts of both are here.

1. It provoked the Council, which protested that officers of the district administration had been made answerable at Calcutta, under English law, for acts done in the discharge of their duty.
2. It paralysed the country courts. Kazis, Muftis and members of Provincial Councils could no longer act without fear of a suit, and the administration of justice in the mofussil was brought to a standstill.
3. It alarmed the population, since a Company court's decree could now be undone at Calcutta and the reach of the Supreme Court was unknown even to those who administered the law.
4. It went to Parliament, which appointed a Select Committee to inquire into the administration of justice in Bengal.
5. It produced the Act of Settlement, 1781, which protected the judicial officers of the country courts for acts done in their judicial capacity, exempted the Governor-General and Council for official acts, excluded revenue matters, and directed the application of personal law.

II) Explain why is it called as the judicial murder in history of courts?

The case

This is the trial of Maharaja Nandkumar (1775).

I) The facts

1. Nandkumar was a Brahmin of high rank who had held revenue office in Bengal and was a long-standing rival of Warren Hastings.
2. In March 1775 he laid before the Council a written charge that Hastings had accepted bribes of over three lakhs of rupees, in connection with appointments and with the affairs of the Munny Begum.

1. An English statute was applied to an Indian for an act done before the Court existed. The forgery was alleged to have been committed in 1770; the Supreme Court was established in 1774, and the statute had never been expressly extended to Bengal.
2. Forgery was not a capital offence under Indian law, Hindu or Muslim. Under the law Nandkumar lived by, the punishment would not have been death.
3. The prosecution was suspiciously timed. A five-year-old forgery charge was revived only after Nandkumar accused the Governor-General of bribery.
4. The judge should not have sat. Impey and Hastings were schoolfellows and lifelong friends, and Nandkumar was the accuser of the judge's closest friend. Impey afterwards accepted from Hastings the presidency of the Sadar Diwani Adalat with a salary, and was recalled and impeached over it.
5. The refusal of a respite. The Court refused to postpone the execution to allow an appeal to the King-in-Council, although the case was novel and the point of law substantial. Refusing time made the error irreparable.
6. The shock it caused. A Brahmin was tried by an English jury under a foreign law and hanged, causing deep and lasting resentment in Bengal.

I) What was the defense taken by Swroopchand in the present case? II) What was the judgment of the Supreme Court?

The case

This is the Swaroop Chand case, one of the revenue cases through which the Supreme Court at Calcutta came into conflict with the Governor-General in Council after the Regulating Act, 1773. It belongs with the Kamaluddin case and was decided on the same principles.

3. He had acted in a representative capacity, as treasurer of the provincial division, and not on his own account, so the sums passing through his hands were not his personal liability.
4. His imprisonment was therefore illegal, being for a sum still in dispute and against a person not primarily liable, and he sought the protection of the Supreme Court by habeas corpus.

II) The judgment of the Supreme Court

The Supreme Court upheld the defence and granted relief, holding:

1. That where the account is disputed, the person proceeded against must be admitted to bail until the enquiry into his obligation to pay has been completed, since imprisonment cannot precede the determination of liability.
2. That a surety, or an ostensible holder, is not to be imprisoned until the person primarily liable has been called on to pay the arrears and has been 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.

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 direction in the Act of Settlement, 1781 to apply personal law to Hindus and Muslims in inheritance, succession and contract.

3. The Company's courts

Civil: the Munsif and Sadar Amin courts for small causes; the District Diwani Adalat under a District Judge, as established by the Cornwallis Code of 1793; the Provincial Courts of Appeal; and the Sadar Diwani Adalat at the head, with an appeal to the King-in-Council in high-value suits.

Criminal: the Magistrates; the Courts of Circuit, created by Cornwallis in 1790 and abolished by Bentinck in 1829, their work passing to the Commissioners of Revenue and Circuit; and the Sadar Nizamat Adalat.

Judges: the Company's covenanted servants, not lawyers, advised by the pandit and the maulvi. Bentinck's reforms of 1831 admitted Indians to the offices of Sadar Amin and Principal Sadar Amin, reversing the exclusion imposed by Cornwallis, and Persian was replaced by the vernacular and English in the courts.

3. Forum shopping by parties who could bring themselves within one system or the other.
4. Executive influence in the Company's courts, whose judges were its own servants.
5. English law unsuited to those it governed in the towns; uncertain personal law, for want of reports, in the districts.
6. Delay and heavy arrears, especially in the Provincial Courts of Appeal.
7. No uniform precedent, the two appellate lines being separate.

6. The reform movement, 1834 to 1861

1. Charter Act of 1833. The turning point. It created a Governor-General of India with legislative power for the whole of British India, added a Law Member to his Council (Macaulay), and provided for a Law Commission.
2. First Law Commission (1834) under Macaulay: the draft Indian Penal Code (1837) and the Lex Loci Report (1840).

Assessment

The dual system was never designed; it accumulated, because the Crown's courts were made for the Company's English servants in the trading towns and the Company's courts for the population of territories acquired later. It became intolerable when the two populations ceased to be separate. The reform of 1861 succeeded because both preconditions had been met: a single legislature after 1833 and a single codified law by 1861.

2. The recommendations

The All India Bar Committee (1953) under Justice S. R. Das 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. The Fourteenth Report of the Law Commission (1958) made the same recommendations and added proposals on legal education. The Act gave effect to both and repealed the Acts of 1879 and 1926.

3. The objectives

1. To amend and consolidate the law relating to legal practitioners.
2. To create one class of practitioner, the advocate, and so a unified Bar.
3. To constitute State Bar Councils and an all-India Bar Council.
4. To provide a common roll and a right of practice throughout India.
5. To vest the discipline of the profession in the profession itself, subject to appeal to the Supreme Court.
6. To lay down standards of professional conduct and etiquette.

3. The end of imperial and racial privilege. The precedence of the English barrister was abolished; admission depends solely on an Indian law degree and enrolment under section 24.
4. Self-government. Admission, regulation, discipline and disbarment passed from the courts to Bar Councils elected by advocates. After Supreme Court Bar Association v. Union of India (1998) it is settled that a court exercising its contempt jurisdiction cannot debar an advocate from practice, because that power belongs to the Bar Councils.
5. A national code of conduct, laid down by the Bar Council of India under section 49(1)(c), replacing the varying practice of different High Courts.
6. A structured disciplinary process with a defined appeal: section 35 (reprimand, suspension, removal), section 37 (appeal to the Bar Council of India), section 38 (further appeal to the Supreme Court), section 36B (one-year limit).
7. A monopoly of practice with corresponding duties. Section 29 makes advocates the only class entitled to practise law, and section 33 bars others from appearing.

For full marks, cover: the origin, Articles 32 and 226 with the difference between them, the five writs with grounds and limits and a leading case each, then the principles of adjudication as a separate numbered head, and the limits.

1. Origin

The writs are prerogative writs of the English King's Bench, exercised in India by the Supreme Courts of the Presidency towns and, after 1861, by the three chartered High Courts only, and even then only within their original civil jurisdiction, that is inside those three cities. The Constitution made the power general.

2. The two articles

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 it is itself a Fundamental Right, called by Dr Ambedkar the "heart and soul" of the Constitution.

4. The five writs

1. Habeas corpus ("you may have the body"): an order to produce a detained person and justify the detention; if unlawful, he is released. Lies against the State and private persons; may be moved by anyone on the detenu's behalf; legality judged at the date of the return. ADM Jabalpur (1976), overruled in Puttaswamy (2017); Sunil Batra v. Delhi Administration (1978).

2. Mandamus ("we command"): an order to a public authority to perform a public duty. Requires a legal right, a public duty, and a demand and refusal. 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; only while the proceeding is pending; only against judicial or quasi-judicial bodies.

4. No disputed questions of fact: the jurisdiction is summary, on affidavit.
5. Delay and laches: relief may be refused to one who has slept on his rights.
6. Conduct of the petitioner: he must come with clean hands and make full disclosure.
7. Res judicata: a petition dismissed on the merits bars a second on the same cause.
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 the infringement of a Fundamental Right is established.
10. Moulding of relief: both articles allow "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).

6. Limits

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

The position in India.

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

Merits: certainty, equality, efficiency, growth of the law, and a check on arbitrariness. Demerits: rigidity, bulk and complexity, illogical distinctions drawn to escape authority, and the retrospective operation of a rule declared after the conduct.

Part 2: Law reporting

Meaning. The systematic recording and publication of judicial decisions, with facts, arguments and reasons.

History in India.

1. They created a single legal system out of many courts. Before 1861 the Crown's courts and the Company's courts had separate appellate lines and no common authority. Precedent, working through the Privy Council and later the Supreme Court, made one law apply in all of them.
2. They gave India the technique of law. It was through the Privy Council that stare decisis, the citation of authority and the distinction between ratio and obiter entered Indian practice.
3. They settled personal law. Hindu and Muslim law were uncodified and disputed. A century of reported Privy Council and High Court decisions on coparcenary, adoption, succession and endowment turned them into a body of ascertainable rules, more usable in court than the original texts.
4. They filled the gaps left by the codes. Even after the Penal Code, the Contract Act and the Evidence Act, the codes had to be interpreted, and it is the reported decisions interpreting them that make them workable.
5. They supplied a rule where no law existed. The residual formula of justice, equity and good conscience would have been arbitrary if applied afresh each time; reported decisions turned it into a consistent body of principle.

For full marks, cover: the circumstances, the features under three heads, then the impact on the judiciary as a separate head with the four cases, the Act of Settlement, and an assessment.

1. The circumstances

By 1772 the East India Company was in crisis. It had acquired the Diwani of Bengal, Bihar and Orissa in 1765 and governed through the dual system, taking the revenue while leaving administration to Indian officials; the result was maladministration and the famine of 1770. Its servants had grown rich on private trade and presents while the Company was near bankruptcy, and in 1772 it applied to the Government for a loan of a million pounds. Parliament used the occasion to intervene. The Regulating Act, 1773 (13 Geo. III c. 63) is the first intervention by the British Parliament in the Company's Indian administration.

2. The main features

A. The Company in England

C. The judiciary

1. The Crown empowered to establish by charter a Supreme Court of Judicature at Fort William, created by the Charter of 26 March 1774, of a Chief Justice and three puisne judges, all English barristers of five years' standing.
2. Civil, criminal, admiralty, ecclesiastical and equity jurisdiction over His Majesty's subjects and persons employed by the Company, with an appeal to the King-in-Council.
3. The Governor-General and Council not liable to arrest or imprisonment in a civil action.
4. Offences by the Company's servants triable in the King's Bench in England.

3. The impact on the Indian judiciary

The positive impact

1. It gave India its first independent court. The Supreme Court was staffed by professional English barristers appointed by the Crown, not by merchants or Company servants, and held office independently of the Company. Compared with the Mayor's Courts, whose judges were the Governor's own employees and whose appellate court was the Governor-in-Council, this was a transformation.

2. The relation between the Court and the Governor-General in Council was not stated at all. Two authorities were created in one town from two different sources with neither ranked above the other, so their disputes had no arbiter.
3. English law was applied to Indians who had never lived by it and had no notice of it.
4. The Court sat only at Calcutta, so a mofussil litigant had to travel hundreds of miles to a court whose language and procedure were foreign to him.

The four cases in which the impact showed itself

1. Nandkumar (1775): an Indian hanged for forgery under an English statute for an act done before the Court existed, in circumstances that made the trial notorious as a judicial murder.
2. Kamaluddin (1775): the Court granted habeas corpus and bail to a revenue farmer imprisoned for arrears, which the Council said made the collection of revenue impossible. The Swaroop Chand case is its companion.

4. Assessment

The Regulating Act is best described as a necessary first attempt that failed in execution. Its objects, parliamentary control, a single government, an independent judiciary and an end to corruption, were the right objects, and all four were eventually achieved. Its failure lay in drafting: it created powers without defining them and authorities without ranking them.

Parliament repaired it in stages: the Act of Settlement, 1781 defined the Court's jurisdiction; Pitt's India Act, 1784 created the Board of Control and gave the Governor-General authority over his Council; the Charter Act of 1833 created a Governor-General of India with legislative power over the whole country; and the Indian High Courts Act, 1861 merged the Crown and Company courts. Every one of those is a repair to something the Regulating Act left unfinished.