BLS LLB 5 Years Sem 3 History of Courts 2024-25 - ATKT Set 2 60/40 Question Paper with Solutions

By the Cornwallis Code of 1793, Cornwallis separated the judiciary from the revenue administration: the Collector was stripped of all judicial power and left with the collection of revenue alone, and each district received a District Judge, a covenanted servant with no revenue duty, so that the officer who decided a dispute had no interest in its outcome.

He further secured the judges' position by making the Government itself suable in its own courts, so that the executive was answerable before the judge rather than above him, and by requiring the Regulations to be printed in English and the vernacular so that judges decided by a published law and not by discretion.

Mandamus means "we command". Its purpose is to compel a public authority, corporation, inferior court or tribunal to perform a public duty which it has failed or refused to perform, and which it is legally bound to perform.

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

The Advocates Act, 1961 does not define misconduct. Section 35 speaks of "professional or other misconduct", and leaves the content to the Bar Councils and the courts.

The courts treat professional misconduct as conduct which, judged by the standards of the profession, is disgraceful or dishonourable, or which shows the advocate to be unfit to remain a member of the Bar; a breach of the Bar Council of India Rules on professional conduct and etiquette, made under section 49(1)(c), is misconduct. "Other misconduct" covers conduct outside professional work which nevertheless shows such unfitness.

The Indian Law Reports Act, 1875. It 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.

A. V. Dicey, in Introduction to the Study of the Law of the Constitution (1885), based the Rule of Law on three principles:

1. Supremacy of law, or absence of arbitrary power. No man may be punished except for a distinct breach of law established in the ordinary manner before the ordinary courts.
2. Equality before the law. Every man, whatever his rank or condition, is subject to the ordinary law and amenable to the ordinary tribunals.
3. The constitution is the result of the ordinary law of the land, its general principles being the outcome of judicial decisions in cases brought by private persons.

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): 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 through 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 are sufficiently differentiated. Kesavananda Bharati (1973) and Indira Nehru Gandhi (1975): separation of powers is part of the basic structure.

Its work

1. The draft Indian Penal Code (1837). Substantially Macaulay's own composition, it was the Commission's principal work: a complete criminal code, written in plain language, with illustrations, defining offences and punishments for all persons in British India regardless of religion or race. It was scrutinised for two decades and enacted as the Indian Penal Code, 1860, coming into force in 1862. It remains one of the most admired codes ever drafted.
2. The Lex Loci Report (1840). It recommended that a body of substantive civil law, a lex loci, be enacted for persons who were neither Hindu nor Muslim, so that Indian Christians, Parsis, Armenians, Jews and converts should not be without a law. It also recommended that a person who changed his religion should not forfeit his rights of property and inheritance. This second recommendation was enacted as the Caste Disabilities Removal Act, 1850.
3. Reports on the administration of justice, on the law of slavery, and on the reform of procedure in the Company's courts.

The provision

Article 32 provides:

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

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

Limits

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

Background

The Charter Act of 1833, also called the Saint Helena Act, renewed the East India Company's charter for twenty years. It was passed in the age of English reform, the year after the Reform Act 1832 and the year of the Abolition of Slavery Act, and it is the most important of the Charter Acts for this subject.

Salient features

1. A Governor-General of India. The Governor-General of Bengal became the Governor-General of India, with authority over the whole of British India; Lord William Bentinck was the first. This is the beginning of a single, centralised administration.
2. A single legislature. The legislative powers of the Bombay and Madras Presidencies were taken away, and all legislative authority was concentrated in the Governor-General in Council, whose enactments were for the first time called Acts and not Regulations, and were to apply to all persons, British and Indian alike, throughout British India.

7. The Indian territories opened to European settlement, and the Governor-General in Council empowered to legislate for them.
8. It also directed the Governor-General in Council to take measures for the amelioration of slavery, which led to its abolition in India by Act V of 1843.

Significance for the courts

The Act made codification possible and therefore made the amalgamation of the courts possible. So long as Bombay and Madras legislated separately, no general code could exist; once one legislature made Acts binding on all persons throughout British India, a single body of law could be written, and a single hierarchy of courts could be built to administer it. The line runs from 1833 to the Law Commissions, from them to the codes of 1859 to 1861, and from those to the Indian High Courts Act, 1861.

I) The facts and the dispute

The setting. The Charter of 1726, granted by George I, established a Mayor's Court in each of the three Presidency towns, of a Mayor and nine Aldermen, with jurisdiction over all civil suits arising within the town and its subordinate factories. The Aldermen held office for life and filled their own vacancies. An appeal lay to the Governor-in-Council, and thence to the King-in-Council above 1,000 pagodas. The law it applied was English law as it stood in 1726.

How the dispute arose at Bombay.

1. The Charter set a territorial test of jurisdiction and did not exclude Indians, so suits between Indians came before the Mayor's Court, including disputes about caste, religious usage, marriage, inheritance and the management of temples and religious endowments.

5. The Governor-in-Council was in an impossible position, being at once the executive government, the appellate court from the Mayor's Court, and the employer of the Mayor and Aldermen. Where it consulted the Court or was consulted by it, the pattern was that the Council would uphold the jurisdiction in terms but object to the ground of the claim, and the Court would hold the objections not substantial and decree the suit.
6. The result was a standing quarrel in which neither side would concede, the Council refusing at times to enforce the Court's orders, and the Court asserting an independence its constitution could not sustain.

II) The changes introduced by the Charter of 1753

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

1. The Mayor and Aldermen were thereafter to be appointed by the Governor-in-Council, instead of the Mayor being elected by the Aldermen and the Aldermen filling their own vacancies. This destroyed the Court's independence at a stroke and is the central change.
2. Suits between Indians were excluded from the Mayor's Court's jurisdiction unless both parties expressly submitted to it. This removed the caste and religion disputes which had caused most of the trouble, and left them to the parties' own communities.

I) What was the impact of this case on the development of Indian Judiciary? II) How would you rule on the admissibility of evidence presented by the prosecution?

Identifying the case

The description, a conflict over whether the Supreme Court had jurisdiction over the Company's officers engaged in the collection of revenue, is the Kamaluddin case (1775), with which the Swaroop Chand case is decided on identical principles.

2. It asserted judicial control over executive action. The Council's answer was one of necessity, that the revenue could not be collected if defaulting farmers could obtain bail. The Court's answer was one of authority, that executive power is conferred by law and its limits are for a court to determine. That is the Rule of Law in its earliest Indian form.
3. It exposed the defect of the Regulating Act, 1773, which had given the Court jurisdiction over persons "employed by" the Company without defining the phrase, and had said nothing about the relation between the Court and the Council.
4. It provoked the counter-reform. The Act of Settlement, 1781 expressly excluded revenue matters, and acts done in the collection of the revenue, from the Supreme Court's jurisdiction, and provided that no man was subject to the Court merely as a zamindar or farmer of revenue. In the short run, therefore, the case narrowed the judiciary's reach.

On the case the stem describes. What the Supreme Court had before it was not evidence but a return to the writ, that is the Revenue Council's statement of the grounds of detention. The Court held the return defective, and the principle it applied is the correct answer to the question as asked: a return to habeas corpus must state facts which in law justify the detention, and a return which asserts a liability that is admittedly disputed and unascertained, and which does not show that the person primarily liable has been pursued, discloses no lawful cause. On that footing the material was insufficient in law, and the prisoner was entitled to be bailed.

The existence of two system of courts created difficulties and complications between the two systems. I.

Write in short about the reasons responsible for the conflict between dual judicial systems. II.

What are the objectives of passing of High Court Act of 1861?

The two systems

The Crown's courts in the Presidency towns were the Supreme Courts of Calcutta (1774), Madras (1801) and Bombay (1823), created by Royal Charters under Acts of Parliament, staffed by English barristers appointed by the Crown, applying English law, with an appeal to the King-in-Council.

3. Different law for the same dispute. The Crown's courts applied English law, the Company's courts personal law and the Regulations, so the outcome of a case could turn on which court took it, which is the negation of equality before the law.
4. Forum shopping, which followed inevitably from point 3: a party who could bring himself within one system did so, and resisted being brought within the other.
5. Different judges and different competence. English barristers on one side; Company civil servants who were not lawyers on the other. Each system regarded the other's judges as unfit, the one for want of legal training, the other for want of knowledge of the country.
6. Different procedure and language. English, technical and slow, with juries, in the towns; simpler and summary, in Persian and later the vernacular, in the districts.

5. To give the High Court superintendence over all courts subject to its appellate jurisdiction, and to make it a court of record.
6. To provide for further High Courts in other provinces by Letters Patent, so that the reform was not confined to the three Presidency towns; Allahabad followed in 1866.
7. To settle the appellate line, with an appeal from the High Courts to the Privy Council.

The Act was given effect by Letters Patent in 1862, re-issued in 1865.

5. They went to the widow's house, seized the property, made an inventory, and reported her deeds to be forged. It was alleged that she was treated with violence and turned out.
6. On that report alone, and without any trial of the issue, the Council decreed the estate to Bahadur Beg, allowing her a one-fourth share as dower.
7. She refused the share, took sanctuary in a dargah, and sued in the Supreme Court at Calcutta against Bahadur Beg, the Kazi and the Muftis, pleading the causes of action the question names: assault, battery, false imprisonment, breaking her house and depriving her of property. These are the English forms of action in trespass.
8. The Supreme Court assumed jurisdiction, holding the defendants to be persons employed by the Company; held their proceedings and the seizure illegal; awarded her Rs 3,00,000 in damages; and, on non-payment, committed them to prison.

II. The consequences of the decision

5. It led to a parliamentary inquiry by a Select Committee of the House of Commons into the administration of justice in Bengal.
6. It produced the Act of Settlement, 1781, whose provisions answer this case directly: the 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 to be applied in inheritance and succession; and the Sadar Diwani Adalat made a court of record with an appeal to the King-in-Council.

What it was

The Judicial Committee of the Privy Council, sitting in London, was the highest court of appeal for India from 1726 until 1949, and for the British Empire generally. Its decision was in form advice to the Crown, which is why it delivered a single opinion and, until 1966, allowed no dissent.

How Indian appeals reached it

1. The Charter of 1726 first gave Indian litigants an appeal to the King-in-Council, from the Governor-in-Council, where the sum exceeded 1,000 pagodas.
2. The Charter of 1774 gave an appeal from the Supreme Court at Calcutta.
3. The Act of Settlement, 1781 allowed appeals from the Sadar Diwani Adalat.
4. The Judicial Committee Act, 1833, at Lord Brougham's instance, constituted the Committee as a formal court with a regular procedure.

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: without it the Calcutta, Bombay, Madras and Allahabad High Courts could have gone their own ways.
5. It set a standard of judicial quality. Its judges were the leading English lawyers of the day, and the standard of its judgments and of the argument before it raised the standard of both in India.
6. It trained the Indian Bar. Indian counsel appeared before it and returned with the methods of the English Bar; the leaders of the Indian profession in the nineteenth and twentieth centuries were formed partly by that experience.
7. It is the ancestor of the Supreme Court of India, which inherited both its jurisdiction and its method.

Criticism

1. It sat five thousand miles away; an appeal was slow and extremely costly, so in practice it served the rich and the Government.

Assessment

The Privy Council was indispensable and unacceptable for the same reason: it was an external authority, which is what allowed it to hold the law uniform across many courts, and what made it impossible for a nation governing itself. What the Supreme Court inherited from it was not only jurisdiction but technique: binding precedent under Article 141, systematic law reporting, the citation of authority, and the very idea of one court declaring the law for a whole country.

Jurisdiction

1. State Bar Council (section 35): where it has reason to believe that an advocate on its roll is guilty of professional or other misconduct, it refers the case to its Disciplinary Committee. The reference may follow a complaint or be made suo motu.
2. Bar Council of India (section 36): its Committee has jurisdiction where the advocate is on no State roll, and it may withdraw to itself any proceeding pending before a State Committee.
3. Section 36B: a State Bar Council must dispose of a proceeding within one year of the reference, failing which it stands transferred to the Bar Council of India.

Misconduct

The Act does not define it. The courts treat it as conduct which, by the standards of the profession, is disgraceful or dishonourable or shows the advocate unfit to remain at the Bar, and a breach of the Bar Council of India Rules made under section 49(1)(c) is misconduct. "Or other misconduct" reaches conduct outside professional work which shows such unfitness.

Appeals and review

Section 37: appeal to the Bar Council of India within 60 days. Section 38: appeal from the Bar Council of India to the Supreme Court within 60 days, and the Supreme Court may pass any order it thinks fit, including varying the punishment. Section 40: stay pending appeal. Section 44: review by the Committee within 60 days.

Case law

1. Bar Council of Maharashtra v. M. V. Dabholkar (1976): advocates snatching briefs at the court door were guilty of professional misconduct; the profession's standards are set by its public responsibility, not by commercial practice.
2. V. C. Rangadurai v. D. Gopalan (1979): an advocate who deceived an old, deaf client was guilty; the Supreme Court upheld the finding but moderated the punishment, holding that discipline should also reform.
3. Supreme Court Bar Association v. Union of India (1998): the Supreme Court, exercising its contempt jurisdiction, cannot debar an advocate from practice, because that punishment is entrusted by the Act to the Bar Councils.
4. Ex-Capt. Harish Uppal v. Union of India (2003): lawyers have no right to strike or boycott courts.

1. Origin and the two articles

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 only within their original civil jurisdiction, that is inside those cities. The Constitution made the power general.

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.

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 between them

3. Prohibition: to forbid an inferior court or tribunal from proceeding beyond its jurisdiction; preventive, only while the proceeding is pending.
4. Certiorari: to quash an order already made, for want of jurisdiction, breach of natural justice, or error of law apparent on the face of the record; curative. A. K. Kraipak (1969) extended it to administrative orders affecting rights.
5. Quo warranto: to call on the holder of a public office, created by statute or the Constitution and substantive, to show his authority; any member of the public may apply.

4. The principles applied in adjudication

1. Locus standi, traditionally confined to the person aggrieved, relaxed for public interest litigation (S. P. Gupta, 1981); always wide in quo warranto.
2. Alternative remedy: a writ is ordinarily refused where an equally efficacious statutory remedy exists, but this is a rule of discretion, not of jurisdiction, and it yields where a Fundamental Right is infringed, where the order is without jurisdiction, or where natural justice has been violated.
3. Natural justice: nemo judex in causa sua and audi alteram partem.

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

A. The Federal Court

1. Created by the Act, inaugurated 1 October 1937 at Delhi, because the Act proposed a federation and a federation needs a court to interpret the distribution of powers.
2. A Chief Justice and not more than six judges, appointed by His Majesty, holding office until 65, removable only on the recommendation of the Judicial Committee of the Privy Council. First Chief Justice Sir Maurice Gwyer; last, Sir Harilal Kania, who became the first Chief Justice of India.
3. Exclusive original jurisdiction in disputes between the Federation and the Provinces or States, giving only a declaratory judgment.
4. Appellate jurisdiction where a High Court certified a substantial question of interpretation of the Act; widened by the Federal Court (Enlargement of Jurisdiction) Act, 1947.

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. The High Courts (Articles 214 to 231): appointment by the President with the collegium's primacy; qualification ten years' judicial office or ten years as an advocate, and citizenship of India; retirement at 62; removal only by an address of both Houses; transfer under Article 222 in the public interest only; salaries charged on the Consolidated Fund (202(3)(d), 221, 229(3)); writ jurisdiction under Article 226 for Fundamental Rights and any other purpose; superintendence under Article 227, unrestricted; court of record (215); and control of the subordinate judiciary (233 to 235).
3. Subordinate courts under the High Court's control, with judicial and executive magistrates separated by the Code of Criminal Procedure, 1973.
4. Tribunals under Articles 323A and 323B, subject to judicial review by the High Courts (L. Chandra Kumar v. Union of India, 1997).

Part 3: The comparison

Part 4: Assessment

What continued. The Constitution did not invent the Indian court system. Article 225 expressly continued the jurisdiction of the existing High Courts, and the Federal Court was the model for the Supreme Court, its decisions preserved by Article 374(2). The structure descends from 1861 through 1935.

What changed, and fundamentally.

1. The source of authority moved from an imperial statute to a sovereign constitution, and the final appeal came home from London to Delhi.
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.