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History of Courts
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BLS LLB 5 Years · Sem 3
2017-18 Examination
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BLS LLB 5 Years Sem 3 History of Courts 2017-18 Question Paper with Solutions
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First published on munotes.in on 10 August 2026.
This edition revised 11 August 2026.
Published by munotes.in, Mumbai.
Model answers written and edited by the munotes.in editorial desk.
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The question paper reproduced here is the paper as set by the University of Mumbai at the 2017-18 examination.
Contents
The questions below are the paper as the University of Mumbai set it at the 2017-18 examination, in the order it was set.
MarksPage
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2017-18 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 80 · 26 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
SECTION I
Q.1 Answer the following in not more than two sentences:
20 marks
1.What was the role of Choultry Courts in 1639?[2]
Answer
In 1639, the year in which Francis Day obtained the grant of Madraspatnam on which Madras was founded, the Choultry Court was the existing village court of that settlement, presided over by the Adigar, the village headman, and deciding petty civil and criminal disputes among the inhabitants according to local custom.
Its role was therefore to supply the local justice the Company inherited when it took the site. The Company did not create it; it took it over, and after the Adigar was found guilty of corruption in 1656 it appointed its own English servants as judges of the court.
2.What was the purpose of the Government of India Act, 1935?[2]
Answer
Its purpose was to provide a new constitution for India, advancing towards responsible government in stages: to establish an All-India Federation of the British Indian provinces and the princely states, with a distribution of powers in three lists; to grant provincial autonomy, abolishing dyarchy in the provinces and making ministers responsible to the provincial legislatures; and to introduce dyarchy at the Centre.
For this subject its purpose was also judicial: because a federation needs a court to interpret the distribution of powers, the Act created a Federal Court, inaugurated on 1 October 1937.
3.Why is the Supreme Court considered the Apex Court of India?[2]
Answer
Because it stands at the head of a single integrated judiciary and its decisions bind everyone below it. Under Article 141 the law declared by the Supreme Court is binding on all courts within the territory of India, and under Article 136 it may grant special leave to appeal from any judgment or order of any court or tribunal in India, so no other court is final on any question.
It is also the guardian of the Constitution, exercising writ jurisdiction under Article 32 for the enforcement of Fundamental Rights and exclusive original jurisdiction under Article 131 in disputes between the Union and the States.
4.What is the purpose of Law Reporting in India?[2]
Answer
The purpose 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.
5.What is the theory on which the concept of rule of Law is based?[2]
Answer
On the theory of la legalite, the principle of legality, as expounded by A. V. Dicey in Introduction to the Study of the Law of the Constitution (1885): that a country must be governed by law and not by the arbitrary will of any person, so that every act of government has a basis in law and all persons are equally subject to the ordinary law administered by the ordinary courts.
Dicey based it on three principles: the absence of arbitrary power, equality before the law, and a constitution which is the result of the ordinary law of the land.
6.What is the contribution of the first Law Commission in India?[2]
Answer
The First Law Commission (1834), appointed under the Charter Act of 1833 with Lord Macaulay as chairman, made two contributions:
- the draft Indian Penal Code (1837), substantially Macaulay's own composition, enacted after long delay as the Indian Penal Code, 1860; and
- the Lex Loci Report (1840), which recommended a body of general substantive civil law for persons who were neither Hindu nor Muslim, and which produced the Caste Disabilities Removal Act, 1850.
7.What is 'Lex-Loci'?[2]
Answer
Lex loci is Latin for the law of the place, that is the law in force in the territory where a person is or where a transaction takes place.
In Indian legal history it names the problem of what general law applies to persons who are neither Hindu nor Muslim, and so have no personal law of their own. The Lex Loci Report of 1840, by the First Law Commission, recommended that a body of substantive civil law be enacted as the lex loci for such persons, and it pointed the way to the general codification of Indian law.
8.What is the object of writ of "Quo-Warranto"?[2]
Answer
Quo warranto means "by what authority". Its object is to prevent a person from holding a public office to which he is not entitled, by calling on him to show by what authority he holds it and ousting him if he cannot show a lawful title.
It protects the public interest in public offices being lawfully held, and it is issued by the Supreme Court under Article 32 and by the High Courts under Article 226.
9.Why is independence of judiciary necessary in the administration of justice?[2]
Answer
Because the government is a party in a very large proportion of litigation, and no one may be a judge in his own cause. A judiciary the executive could control would not decide against it, and a law binding the executive would then be worth nothing.
It is also necessary to make Fundamental Rights enforceable under Articles 32 and 226, and to enable the judiciary to act as interpreter of the Constitution under Article 141 and as umpire of the federation under Article 131.
10.Who is empowered to punish the Advocates for mis-conduct?[2]
Answer
Under section 35 of the Advocates Act, 1961, the Disciplinary Committee of the State Bar Council on whose roll the advocate is entered is empowered to punish him for professional or other misconduct. It may dismiss the complaint, reprimand him, suspend him from practice for a period, or remove his name from the roll.
An appeal lies to the Bar Council of India under section 37, and from it to the Supreme Court under section 38.
SECTION II
Q.2 Write short notes on any four of the following:
20 marks
11.Dyarchy in India.[5]
Answer
Meaning
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.
Its introduction: the Government of India Act, 1919
It was introduced in the provinces by the Government of India Act, 1919, on the recommendation of the Montagu-Chelmsford Report (1918), which followed the Montagu Declaration of 20 August 1917 promising the gradual development of self-governing institutions.
Provincial subjects were divided into two:
- Transferred subjects, such as education, local self-government, public health, agriculture and industries, administered by the Governor with ministers chosen from and responsible to the elected legislature; and
- Reserved subjects, such as law and order, police, land revenue, irrigation and justice, administered by the Governor with his Executive Council, who were not responsible to the legislature.
Its object
To give Indians responsible government in stages, handing over the less critical departments as an experiment while the British retained the ones that mattered for control.
Why it failed
- Responsibility was divided, so nobody could be held to account: a failure in a transferred subject could always be blamed on the reserved half, and the reverse.
- The ministers had no money. The revenue-raising subjects were reserved, so the transferred departments depended on allocations they did not control.
- The Governor's overriding powers, including the power to certify legislation and to act against his ministers' advice, made ministerial responsibility largely nominal.
- The franchise was narrow, about five million people.
- The civil service remained under the reserved half, so ministers had no control over the officers who executed their policy.
Its end
The Simon Commission (1927), appointed under the Act's own provision for a review after ten years, reported against dyarchy. The Government of India Act, 1935 abolished it in the provinces, granting provincial autonomy with ministers responsible to the legislature, and proposed dyarchy at the Centre instead, which never came into operation because the federation it depended on was never formed.
Its significance for this subject
Justice was a reserved subject, so the administration of the courts stayed firmly in the Governor's hands throughout the dyarchy period, and the Act of 1919 made no change in the constitution of the High Courts. Its importance here is indirect: by separating central and provincial subjects for the first time it began the federal distribution of powers which the Act of 1935 completed, and which made a Federal Court necessary.
12.Principles of Natural Justice.[5]
Answer
Meaning
The principles of natural justice are the minimum standards of fair procedure which every authority deciding a matter affecting rights must observe. They are not derived from statute; the courts imply them into every adjudicatory process unless expressly excluded.
The two classical principles
1. Nemo judex in causa sua, the rule against bias. No man may be a judge in his own cause. The decision-maker must have no pecuniary interest, however small, no personal interest or relationship with a party, and no official or policy bias. Actual bias need not be proved: a real likelihood or reasonable apprehension of bias suffices, because justice must not only be done but be seen to be done.
2. Audi alteram partem, the right to be heard. No man may be condemned unheard. It requires notice of the case to be met; disclosure of the material relied on; a fair opportunity to answer; the right to cross-examine where the matter turns on disputed evidence; and, in serious cases, legal representation.
3. A reasoned decision. The modern Indian cases add a third requirement, that the authority give a speaking order.
Application in India
A. K. Kraipak v. Union of India (1969) held that the principles apply to administrative as well as judicial functions. Maneka Gandhi v. Union of India (1978) held that the procedure contemplated by Article 21 must be fair, just and reasonable, bringing natural justice into the guarantee of personal liberty itself.
Exclusions
They may be excluded by express statutory provision, in cases of urgency, where a preliminary inquiry decides no rights, in legislative action, and where compliance would be useless, though the courts construe such exclusions narrowly.
Their remedy
Breach of natural justice is a ground for certiorari, to quash the order, and for prohibition, to stop the proceeding, under Articles 32 and 226.
13.Conditions for becoming an Advocate under the Bar Council of India.[5]
Answer
The qualifications: section 24
Under section 24 of the Advocates Act, 1961, a person may be admitted as an advocate on a State roll if he:
- is a citizen of India, provided that a national of another country may be admitted if citizens of India duly qualified are permitted to practise law in that country;
- has completed the age of twenty-one years;
- has obtained a degree in law from a university in India recognised by the Bar Council of India, or an equivalent foreign qualification recognised for the purpose;
- fulfils such other conditions specified in the rules of the State Bar Council; and
- has paid the prescribed enrolment fee.
The disqualifications: section 24A
A person is disqualified if he is convicted of an offence involving moral turpitude, convicted under the Untouchability (Offences) Act, 1955, or dismissed or removed from employment or office under the State on a charge involving moral turpitude. The disqualification ceases two years after his release, dismissal or removal, and does not apply where the conviction has been set aside, where a pardon has been granted, or where its effect has been removed under a law such as the Probation of Offenders Act.
The degree: what the Bar Council requires
Under section 7(1)(h) and (i) the Bar Council of India lays down the standards of legal education and recognises the universities whose degree qualifies, with power to visit and inspect them. Under its rules the qualifying degree is either the five-year integrated LL.B. after Class XII, introduced in 1982, or the three-year LL.B. after graduation, and the course must include the prescribed practical papers: moot court, drafting, pleading and conveyancing, professional ethics, and public interest lawyering.
After enrolment
Since 2010 an enrolled advocate must pass the All India Bar Examination, conducted by the Bar Council of India under its rule-making power in section 49, before he obtains a certificate of practice. The place of that examination in the scheme was settled by the Supreme Court in Bar Council of India v. Bonnie FOI Law College (2023).
Who admits
Admission and enrolment are by the State Bar Council under section 6, through its Enrolment Committee under section 10. Once enrolled, the advocate has under section 30 the right to practise throughout India, in all courts including the Supreme Court.
14.Importance of Mayor's Court.[5]
Answer
The two Mayor's Courts
The Charter of 1687, granted by the Company, established at Madras a Corporation of a Mayor, twelve Aldermen and sixty or more Burgesses, with a Mayor's Court as a court of record, assisted by a Recorder learned in the law, deciding according to justice and good conscience, with an appeal to the Admiralty Court.
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, as Crown courts, with civil and testamentary jurisdiction, an appeal to the Governor-in-Council and thence to the King-in-Council above 1,000 pagodas.
Its importance
- It introduced English law into the Presidency towns. The Charter of 1726 brought in English law as it stood at that date, and that reception is the foundation of the law administered in the Presidency towns until 1861 and of much that survives today.
- It established the appeal to the King-in-Council, which grew into the jurisdiction of the Judicial Committee of the Privy Council and lasted until 1949. Every Indian appeal to London for two hundred and twenty years descends from this charter.
- It gave the Presidency towns their first settled civil justice, with a regular court sitting at fixed times, keeping records, and giving decrees that could be enforced.
- It created courts of record, whose proceedings were preserved and provable, and whose decrees were recognised in England. This was the Company's actual motive in petitioning the Crown in 1726: a Company court's decree was of doubtful value in England, while a Crown court's record was a judgment of the King's court.
- It began the involvement of Indians in an English-style institution. Under the Charter of 1687 Indians sat on the Corporation of Madras as Aldermen and Burgesses, which makes it the first municipal body in India on the English model and not confined to Englishmen.
- It exposed, by its own failure, what a court needs. Its judges were merchants, not lawyers; it was not independent of the Governor-in-Council, which was at once the executive, the appellate court from it and the employer of its judges; and it applied English law to Indians in matters of caste and religion for which it was unfit. Those three defects are precisely what the Supreme Court of 1774 was constituted to avoid, with professional English barristers appointed by the Crown.
Assessment
The Mayor's Courts were institutionally important and judicially poor. They gave India the reception of English law, the appeal to the King-in-Council, the court of record and the habit of regular civil justice; and they demonstrated, by failing, that a court must be staffed by lawyers and must be independent of the executive it exists to control.
15.Major Reforms made by Cornwallis code.[5]
Answer
What the Code was
The Cornwallis Code is a body of forty-eight Regulations enacted in 1793 by Lord Cornwallis, Governor-General from 1786 to 1793, recasting the whole judicial and revenue administration of Bengal, Bihar and Orissa. It followed his measures of 1787 and 1790.
The major reforms
- Separation of the judiciary from the revenue administration. The Collector was stripped of all judicial power and left with the collection of revenue alone; each district received a District Judge, a covenanted servant with no revenue duty. This is the reform for which Cornwallis is remembered, and the one Hastings had attempted three times without success.
- The Magistracy was given to the District Judge, so the executive officer no longer held criminal powers either.
- The Mal Adalats were abolished and revenue disputes transferred to the ordinary Diwani Adalats, so a revenue claim by the Government went before the same judge as any other claim.
- The Government was made suable in its own courts. The Company and its officers in their official capacity could be sued in the Diwani Adalats, and judgment 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.
- 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 an appeal to the King-in-Council in suits above £5,000.
- 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.
- All Regulations to be printed in English and the vernacular, with the reasons for them, and the courts bound to decide according to them. This is the beginning of a written, published and knowable law.
- Criminal law reform, carried over from 1790: the Faujdari Adalats abolished and replaced by four Courts of Circuit; the Sadar Nizamat Adalat moved to Calcutta under the Governor-General and Council; liability for homicide made to turn on intention rather than on the instrument; mutilation abolished; and the relatives' right to pardon a murderer curtailed.
Defects
Indians were excluded from all responsible office, so the judge commonly knew neither the language nor the customs of the parties; this is the gravest criticism and was reversed only by Bentinck in 1831. The new hierarchy produced delay and arrears; the courts were few and distant; and the judges were civil servants, not lawyers.
16.Working of the Supreme Court at Calcutta.[5]
Answer
Establishment and composition
Established by a Royal Charter dated 26 March 1774, issued by George III under section 13 of the Regulating Act, 1773, and sitting from October 1774. A Chief Justice and three puisne judges, appointed by the Crown, all English barristers of not less than five years' standing: Sir Elijah Impey, Robert Chambers, Stephen Caesar Lemaistre and John Hyde.
Jurisdiction
Civil, over British subjects in Bengal, Bihar and Orissa, the Company's servants, and persons who submitted in writing; criminal, as a court of oyer and terminer with a jury of British subjects; equity, on the Chancery model; ecclesiastical, in probate and administration; admiralty; and the prerogative writs, with supervision over the inferior courts of Calcutta. Appeal to the King-in-Council.
Law applied
English law as it stood in 1774, subject after 1781 to the direction that Hindu law be applied to Hindus and Muslim law to Muslims in inheritance, succession and contract.
How it actually worked
Its working is the story of its conflict with the Governor-General in Council, because the Regulating Act defined neither its jurisdiction nor its relation to the Company's government:
- Nandkumar (1775): an Indian hanged for forgery under an English statute for an act done before the Court existed, a trial notorious as a judicial murder.
- Kamaluddin and Swaroop Chand (1775 onwards): habeas corpus and bail granted to revenue farmers imprisoned for arrears, which the Council said made the collection of revenue impossible.
- The Patna Case (1777 to 1779): Rs 3,00,000 awarded against the Kazi and Muftis of the Patna Provincial Council for acts done in office, which paralysed the country courts.
- 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.
Settlement and end
The Act of Settlement, 1781 exempted the Governor-General and Council for official acts, excluded revenue matters, protected the judicial officers of the country courts, and directed the application of personal law. Supreme Courts on the same model followed at Madras (1801) and Bombay (1823), and all three were abolished and merged into the High Courts by the Indian High Courts Act, 1861.
Assessment
The Court brought to India for the first time an independent judiciary applying a known law, staffed by professional lawyers and beyond the Company's control, and its writs gave the subject a remedy he had never had. It failed because it applied English law to a population that did not live by it, and because its jurisdiction had been left so vague that it could not be exercised without collision.
SECTION III
Q.3 Attempt any two of the following:
12 marks
17.The conflict between the Supreme Court and the Supreme Council reached a climax in this case. The Supreme Court claimed its jurisdiction over the whole native population while the Supreme Council opposed it.[6]
Answer
The Parliament passed the Act of Settlement, 1781 on the basis of the detailed report presented by the Committee appointed for this purpose. (a) Identify the case and give the facts of the case.
(b) Describe the main conflict in this case.
(a) The case and the facts
The case is the Cossijurah Case (1779 to 1780).
- Raja Sundernarayan, the zamindar of Cossijurah, was heavily indebted to Cossinath Baboo, a merchant and a former servant of the Company.
- Cossinath sued the Raja in the Supreme Court at Calcutta, alleging that the Raja was within its jurisdiction because he was employed by the Company in the collection of revenue.
- The Court issued process for the Raja's arrest.
- 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, and directed the Raja not to appear.
- The Raja evaded the process and hid. The Court sent its Sheriff with an armed party to arrest him, and it was alleged that his house and a place of worship were violated in the search.
- The Council sent a body of sepoys, who seized the Sheriff and his men, confined them, brought them back to Calcutta and released the Raja.
- The Supreme Court then entertained an action by Cossinath against the Governor-General and the members of Council personally, and against the commanding officer. They refused to appear, denying that the Court had any jurisdiction over them.
- The Court's process having been defeated by force, the quarrel went to Parliament, which appointed the Select Committee the question refers to, and on its report Parliament passed the Act of Settlement, 1781.
(b) The main conflict
- Over whom the Court had jurisdiction. The Regulating Act, 1773 extended it to "His Majesty's subjects" and to persons "employed by" the Company, and defined neither. The Court read "employed by" widely enough to include a zamindar who collected revenue; the Council read it to mean only those actually in the Company's service, and maintained that the Court was claiming jurisdiction over the whole native population, who had never consented to be governed by English law.
- Whether the Council itself was subject to the Court. The Court held the Governor-General and members of Council personally liable for acts outside their lawful authority. The Council answered that it was the government of the country, responsible to the Company and to Parliament and not to a court sitting in Calcutta, and that if it could be sued for its executive acts it could not govern.
- What law was to be applied. The Court applied English law and English forms of action to Indians in the mofussil who lived under Hindu or Muslim personal law.
- Which authority was supreme. Beneath all of it lay the question the Regulating Act never answered: whether the Crown's court or the Company's government was the higher authority in Bengal. There was no arbiter, so the dispute was settled first by force and then by statute.
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.
18.The judgement of the Supreme Court in this case provoked the members of the Council. It increased the conflict and also created panic among the local population of Calcutta.[6]
Answer
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 official capacity was questioned. (a) What was the main issue in this case?
(b) What were the effects of the decision held by the Supreme Court in this case?
Identifying the case
The case is the Patna Case (1777 to 1779). The description fits it exactly: it is the one case in which the Supreme Court tried an action against the judicial officers of the Company, the Kazi and two Muftis of the Patna Provincial Council, for what they had done in the course of their office. The identification is put beyond doubt by the other two items of this section, which are Cossijurah and Nandkumar.
The facts in brief
Shahbaz Beg Khan, an Afghan in the Company's military service, died childless at Patna. His widow Naderah Begum claimed the estate under a deed of gift (hibanama); his nephew Bahadur Beg claimed as adopted son and applied to the Patna Provincial Council. The Council sent its law officers, the Kazi and two Muftis, to examine and report; they seized the property, reported her deeds forged, and on that report alone the Council decreed the estate to Bahadur Beg, allowing her a one-fourth share. She sued in the Supreme Court at Calcutta for assault, battery, false imprisonment, breaking her house and depriving her of her property.
(a) The main issue
The main issue was whether the Supreme Court had jurisdiction over the Company's Indian judicial officers for acts done in the course of their official duty.
That single issue contains three questions the Regulating Act, 1773 had left unanswered:
- Were the Kazi and Muftis, as law officers of a Provincial Council, persons "employed by" the Company, and so within the Court's jurisdiction?
- Was Bahadur Beg, as a farmer of land revenue, within it?
- Could acts done in a judicial or official capacity in the districts be tried at Calcutta, by a court applying English law, at the suit of a private person?
A subsidiary issue, on which the Court was plainly right, was whether the Provincial 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.
(b) The effects of the decision
The Court held that it had jurisdiction, found the proceedings illegal, awarded the widow Rs 3,00,000 in damages, and, on non-payment, committed the defendants to prison. The effects were:
- It provoked the Council, which protested that officers of the district administration had been made personally liable at Calcutta, under English law, for acts done in the discharge of their duty.
- It brought the country courts to a standstill. No Kazi, Mufti or member of a Provincial Council could act while liable to be sued, and the administration of justice in the mofussil was disrupted.
- It alarmed the population of Calcutta and the districts, 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.
- It exposed the Company's judicial machinery, a title to property having been decided on a report and not on a trial.
- It led to a parliamentary inquiry by a Select Committee of the House of Commons.
- It produced the Act of Settlement, 1781, whose provisions answer this case directly: the judicial officers of the country courts were protected for acts done in their judicial capacity; the Governor-General and Council were exempted for official acts; revenue matters were excluded; no man was within the Court merely as a zamindar or farmer of revenue; Hindu and Muslim personal law was to be applied; and the Sadar Diwani Adalat was made a court of record.
19.Raja Nand Kumar's trial was a very decisive event which led to the growing enemity between the Supreme Court and the Governor in Council.[6]
Answer
The judges insisted on the independence of judiciary and in spite of interference of the Council, the Supreme Court began to exercise the administration of justice in India in its own way. (a) Describe the facts of the case.
(b) Give reasons for the charges framed against him.
(a) The facts
- Maharaja Nandkumar was a Brahmin of high rank who had held revenue office in Bengal and was a long-standing rival of Warren Hastings.
- 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.
- Hastings's Council contained a hostile majority of Clavering, Monson and Francis, appointed under the Regulating Act, 1773. They took up the charge over Hastings's protest that his own Council could not sit in judgment on him, examined it, and resolved that the money should be repaid.
- Shortly afterwards Nandkumar was arrested. He was first charged, with Fowke and Radhacharan, with conspiracy, on the complaint of Mohan Prasad; and while that was pending he was indicted for forgery of a bond alleged to have been forged in 1770, five years earlier and four years before the Supreme Court existed.
- He objected to the jurisdiction, being neither a British subject nor employed by the Company, and the act charged preceding the Court's creation. The objection was overruled.
- He was tried in May 1775 before Chief Justice Sir Elijah Impey and the puisne judges, with an English jury, under the English forgery statute which made forgery a capital felony, and was convicted.
- His petitions for leave to appeal to the King-in-Council and for a reprieve were refused.
- He was hanged on 5 August 1775.
(b) The reasons for the charges framed against him
The question asks why the charges were brought, and the answer is that they were brought in retaliation and by Hastings's supporters, in circumstances that make any other explanation difficult:
- The timing. Nandkumar accused the Governor-General of taking bribes in March 1775; he was prosecuted within weeks. The forgery alleged was five years old and had lain untouched until the accusation was made.
- The prosecutor. Both proceedings were set in motion by Mohan Prasad, who was connected with Hastings's interest, and the conspiracy charge was directed at the very act of accusing Hastings, alleging that the charge of bribery had been fabricated.
- The choice of the forgery charge. Conspiracy would not have been capital; forgery under the English statute was. Bringing a second and capital charge while the first was pending is what turned a political quarrel into a hanging.
- The forum. The charge was laid in the Supreme Court, a court whose Chief Justice, Impey, was Hastings's schoolfellow and lifelong friend, and not in any of the Company's courts.
- The effect intended and achieved. The prosecution destroyed the principal witness against the Governor-General, and after Nandkumar's execution no Indian came forward with a charge against Hastings again.
The consequence. Whatever the strength of the evidence, the charge chosen, the moment chosen and the court chosen combined to produce a death sentence on a man who had accused the head of the government, and Indian legal historians therefore describe the trial as a judicial murder, a killing carried out through the forms of law.
SECTION IV
Q.4 Attempt any four of the following:
48 marks
20.What are the salient features of the Government of India Act, 1935?[12]
Answer
For full marks, cover: the background, the features one by one, the judicial provisions in detail, the criticism, and the significance.
1. Background
The Act was the outcome of the Simon Commission (1927), the three Round Table Conferences (1930 to 1932), the White Paper of 1933 and the report of the Joint Select Committee. It was the longest Act passed by the British Parliament to that date, running to 321 sections and 10 schedules, and it is the principal source of the Constitution of India.
2. The salient features
- An All-India Federation of the British Indian provinces and the princely states. The provinces were to join compulsorily and the states voluntarily. Because too few states acceded, the federation never came into being, and only the provincial part was brought into force, in 1937.
- Provincial autonomy. Dyarchy was abolished in the provinces, which ceased to be delegates of the Centre and became autonomous units administered by a Governor with a council of ministers responsible to the provincial legislature, subject to the Governor's wide discretionary and special responsibility powers.
- Dyarchy at the Centre. Federal subjects were divided into reserved subjects, defence, external affairs and ecclesiastical affairs, administered by the Governor-General with counsellors, and transferred subjects, administered with ministers. This never came into operation.
- Distribution of powers in three lists: the Federal List (59 items), the Provincial List (54 items) and the Concurrent List (36 items), with residuary powers in the Governor-General. The Constitution follows this scheme, though it gives the residuary power to Parliament.
- A Federal Court, inaugurated 1 October 1937. See section 3 below.
- Bicameral legislatures in six of the eleven provinces; extension of the franchise to about ten per cent of the population; and the continuation and extension of separate electorates.
- Abolition of the Council of India; the Secretary of State was given a team of advisers instead.
- A Reserve Bank of India and Federal and Provincial Public Service Commissions were provided for.
- The Governor-General and Governors retained emergency powers, including the power to proclaim an emergency and assume the government of a province, the ancestor of Article 356.
3. The judicial provisions
The Federal Court. A Chief Justice and not more than six judges, appointed by His Majesty, holding office until 65, removable only for misbehaviour or infirmity 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. Jurisdiction: exclusive original in disputes between the Federation and the Provinces or States, giving only a declaratory judgment; appellate where a High Court certified a substantial question of interpretation of the Act, widened by the Federal Court (Enlargement of Jurisdiction) Act, 1947; and advisory on a reference by the Governor-General. It was not final: an appeal lay to the Privy Council.
The High Courts (sections 219 to 234). Continued as courts of record; judges appointed by His Majesty, with no fixed strength, retiring at 60, removable by His Majesty on a Privy Council report; qualifications a barrister of ten years, an ICS member of ten years who had been a district judge for three, or a pleader of ten years; salaries charged on provincial revenues; superintendence narrowed by section 224(2); and writ jurisdiction confined to the three chartered High Courts within their original civil jurisdiction.
4. Criticism
It was rigid, with no provision for amendment by an Indian body; it retained wide special powers for the Governor-General and Governors, which qualified provincial autonomy severely; the federation never came into being; and communal electorates were entrenched further. On the judicial side the structure was incomplete: the Federal Court was not final, there were no Fundamental Rights to enforce, the writ jurisdiction was confined to three cities, and the judiciary was not separated from the executive. Nehru called it a machine with strong brakes and no engine; Jinnah described it as thoroughly rotten and unacceptable.
5. Significance
Despite that, it is the single largest source of the Constitution of India. The federal structure and three lists, the office of Governor, the Federal Court as the model for the Supreme Court, the emergency provisions, the Public Service Commissions and much of the administrative machinery were carried over in 1950, and Article 225 continued the High Courts as the Act had left them.
21.Describe the role of Law Commission in modern India and explain its contributions towards law reforms.[12]
Answer
For full marks, cover: the origin, the pre-independence Commissions in outline, the modern Commission's nature, terms of reference and method, its contributions in detail, its 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.
2. The pre-independence Commissions, in outline
First (1834) under Macaulay: the draft Indian Penal Code (1837), enacted 1860, and the Lex Loci Report (1840). Second (1853): recommended the amalgamation of the Supreme Courts and the Sadar Adalats, carried out by the Indian High Courts Act, 1861, and the codes of procedure. Third (1861): the Indian Succession Act, 1865, the Indian Contract Act, 1872, the Indian Evidence Act, 1872, the Transfer of Property Act, 1882. Fourth (1879): consolidation, and the Negotiable Instruments Act, 1881 and Indian Easements Act, 1882.
3. The Commission in modern India
Constitution. The First Law Commission of independent India was constituted in 1955 under Shri M. C. Setalvad, the first Attorney-General of India, and a Commission has since been reconstituted, usually for a three-year term, by executive order.
Nature. A non-statutory, executive body with no constitutional or statutory basis, whose reports are recommendatory only, normally chaired by a retired judge, with full-time and part-time members, ex officio members from the Legislative Department and the Department of Legal Affairs, and a research staff.
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. A consultation paper or questionnaire; wide consultation with the Bench, the Bar, universities, government and the public; and a report with a draft Bill annexed, which is what makes the reports usable, since a Ministry can move the draft as it stands.
4. Its contributions towards law reform
- The reform of judicial administration. The Fourteenth Report (1958), in two volumes, is the most influential of all. It examined the whole judicial system, arrears, the subordinate judiciary, the legal profession and legal education, and it is the foundation of the Advocates Act, 1961, of the Legal Services Authorities Act, 1987, and of much of the reform of court administration.
- The reform of criminal procedure. The Forty-first Report (1969) produced the Code of Criminal Procedure, 1973, which among much else carried out Article 50 by dividing judicial magistrates, under the High Court, from executive magistrates, under the State Government.
- The liability of the State. The First Report (1956) on the Liability of the State in Tort was the first attempt to rationalise the State's answerability in damages.
- Capital punishment. The Thirty-fifth Report (1967) recommended retention; the Two hundred and sixty-second (2015) recommended abolition except for terrorism and waging war.
- Speedier criminal justice. The One hundred and fifty-fourth Report (1996) led to the introduction of plea bargaining in 2005, and the Two hundred and sixty-eighth (2017) to proposals on bail reform.
- Arrears and judge strength. The Two hundred and thirtieth and Two hundred and forty-fifth Reports examined why cases take so long and what judge strength is required to clear them.
- Arbitration, contributing to the Arbitration and Conciliation Act, 1996 and its amendments.
- The repeal of obsolete laws, under successive reports, by which many hundreds of dead statutes have been removed from the books.
More than 280 reports have been submitted, of which a substantial proportion, commonly put at over half, have been acted on in whole or in part.
5. Limitations
- It is non-statutory and advisory; it cannot compel the Government to act, and many reports have lain unimplemented for decades.
- It is constituted by the executive, whose choice its terms of reference and membership are, so its agenda is not independent.
- There are often long gaps between one Commission and the next.
- It has no power to review the working of the reforms it recommends.
- Its recommendations on politically contentious subjects, the Uniform Civil Code, capital punishment, sedition, tend not to be implemented.
- Implementation is slow even when accepted: the Penal Code waited twenty-three years from Macaulay's draft, and the Forty-first Report four years for the Code of 1973.
6. 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 the possibility of 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, published 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. Giving it a statutory basis, a fixed cycle of reconstitution and a duty on Government to place its reports before Parliament with a stated response would meet the main criticisms.
22.Explain the dual system of Courts prevailing in India between 1834 to 1861?[12]
Answer
For full marks, cover: what the dual system was, the two lines of courts, the differences, the difficulties, the reform movement, the amalgamation, and an assessment.
1. What the dual system was
Before 1861 two systems of courts of entirely dissimilar origin existed side by side in British India: the Crown's courts in the Presidency towns, created by Royal Charters under Acts of Parliament and applying English law; and the Company's courts in the mofussil, created by the Company under its own Regulations and applying Hindu and Muslim personal law, custom and the Regulations.
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, 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 as Sadar Amin and Principal Sadar Amin, reversing the Cornwallis exclusion, and Persian was replaced by the vernacular and English.
Law: the Regulations, personal law, and justice, equity and good conscience.
4. The differences
| Basis | Crown's courts | Company's courts |
|---|---|---|
| Created by | Royal Charter | The Company's Regulations |
| Area | The three Presidency towns | The mofussil |
| Judges | English barristers | Company civil servants |
| Law | English law | Personal law, custom, Regulations |
| Procedure | English, technical, juries | Simpler, summary |
| Language | English | Persian, later the vernacular |
| Appeal | King-in-Council | Sadar Adalat, then King-in-Council |
5. The difficulties it created
- Conflict of jurisdiction, with no common superior in India.
- Different law for the same dispute, so the result turned on which court took the case.
- Forum shopping.
- 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.
- English law unsuited to those it governed in the towns; uncertain personal law, for want of reports, in the districts.
- Delay and heavy arrears.
- No uniform precedent, the two appellate lines being separate.
6. The reform movement, 1834 to 1861
- Charter Act of 1833. The turning point: a Governor-General of India with legislative power for the whole of British India, a Law Member (Macaulay), and provision for a Law Commission.
- First Law Commission (1834): the draft Indian Penal Code (1837) and the Lex Loci Report (1840).
- Second Law Commission (1853): recommended the amalgamation of the Supreme Courts and the Sadar Adalats and the codification of procedure. The direct source of the Act of 1861.
- The codes of 1859, 1860 and 1861, giving the courts one body of law.
- Government of India Act, 1858: the government passed from the Company to the Crown, removing the constitutional basis of the distinction.
7. The amalgamation: the Indian High Courts Act, 1861
Abolished the Supreme Courts and the Sadar Adalats and merged them into one High Court per Presidency, by Letters Patent in 1862 (re-issued 1865): a Chief Justice and not more than fifteen puisne judges, at least one-third barristers and at least one-third covenanted civil servants. Further High Courts could follow; Allahabad in 1866.
8. 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.
23.Explain the concept of Writ jurisdiction under the Constitution of India. Elucidate the same?[12]
Answer
For full marks, cover: the origin, Articles 32 and 226 and the difference between them, each of the five writs with grounds, limits and a leading case, the principles of adjudication, 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 cities. A litigant in the mofussil had no writ remedy at all. 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, which Dr Ambedkar called 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.
3. The difference
| Basis | Article 32 | Article 226 |
|---|---|---|
| Purpose | Fundamental Rights only | Fundamental Rights and any other purpose |
| Nature | A Fundamental Right in itself | A constitutional right |
| Discretion | Relief cannot be refused where a Fundamental Right is infringed | Discretionary |
| Territory | Throughout India | The High Court's territories, plus cause of action |
| Suspension | Under Article 359, never for Articles 20 and 21 | Not suspended in the same way |
4. The five writs
1. Habeas corpus ("you may have the body"): an order to the person detaining another to produce him 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 v. Shivkant Shukla (1976), overruled in K. S. Puttaswamy (2017); Sunil Batra v. Delhi Administration (1978).
2. Mandamus ("we command"): an order to a public authority, corporation, inferior court or tribunal 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; 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. 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, and 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, created by statute or the Constitution and substantive, to show his authority, and ousting him if it is unlawful. Any member of the public may apply.
5. The principles applied in adjudication
- Locus standi, traditionally confined to the person aggrieved, relaxed for public interest litigation (S. P. Gupta v. Union of India, 1981); always wide in quo warranto.
- Alternative remedy: ordinarily a bar, but a rule of discretion, not of jurisdiction, yielding where a Fundamental Right is infringed, where the order is without jurisdiction, or where natural justice has been violated.
- Natural justice: nemo judex in causa sua and audi alteram partem.
- No seriously disputed questions of fact, the jurisdiction being summary and on affidavit.
- Delay and laches.
- Clean hands and full disclosure.
- Res judicata.
- Futility: no writ will issue that would be infructuous or unenforceable.
- Discretion: relief under Article 226 is discretionary; under Article 32 it cannot be refused once the infringement of a Fundamental Right is shown.
- Moulding of relief: both articles permit "directions or orders" as well as writs, so the court may grant what the case requires, including compensation (Rudul Sah v. State of Bihar, 1983; Nilabati Behera, 1993).
6. Limits
Article 361 protects the President and Governors; Articles 122 and 212 bar inquiry into the internal proceedings of the legislatures. 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.
7. Significance
The writ jurisdiction is the mechanism by which the Constitution's guarantees are enforced against the State. It converts a written promise into a remedy that a single individual can pursue, and it is the reason Article 32 was called the heart and soul of the Constitution.
24.Explain the provisions of Advocates Act, 1961 with special reference to its disciplinary powers over Advocates.[12]
Answer
For full marks, cover: the background and objects briskly, the Bar Councils, classes of advocates, enrolment and the right to practise, and then the disciplinary scheme in detail, with the Committee, misconduct, procedure, punishments, appeals and case law.
1. Background and objects
Before 1961 the profession was split into advocates, vakils, pleaders, mukhtars, attorneys and barristers, with different rights in different courts, and a practitioner enrolled in one High Court could not appear in another. The All India Bar Committee (1953) under Justice S. R. Das and the Fourteenth Report of the Law Commission (1958) recommended a unified national Bar with self-government. The Act gave effect to both and repealed the Legal Practitioners Act, 1879 and the Indian Bar Councils Act, 1926.
2. The Bar Councils
State Bar Councils (section 3): elected advocates with the Advocate-General ex officio; functions in section 6, to admit advocates, maintain the roll, determine cases of misconduct, safeguard advocates' interests, promote law reform and organise legal aid.
Bar Council of India (section 4): members elected by the State Bar Councils with the Attorney-General and Solicitor-General ex officio; functions in section 7, to lay down standards of professional conduct and etiquette, the procedure of disciplinary committees, the standards of legal education, to recognise universities, to hear appeals, and to make rules under section 49.
3. Classes of advocates, enrolment and the right to practise
Section 16: senior advocates and other advocates, designation being by the Supreme Court or a High Court with consent, on the ground of ability, standing at the Bar or special knowledge or experience in law. Section 24: enrolment requires citizenship of India, 21 years of age and a law degree from a recognised university; section 24A disqualifies for conviction of an offence involving moral turpitude and the like, the disqualification ceasing after two years. Section 29: advocates are the only class entitled to practise law. Section 30: every advocate on a State roll may practise throughout India, in all courts including the Supreme Court. Section 33 bars others from appearing.
4. The disciplinary powers: the special reference
(a) The Disciplinary Committee (section 9). Each Bar Council constitutes one or more, of three members: two elected by the Council from among its members and one co-opted advocate of at least ten years' standing who is not a member of the Council. The senior-most advocate presides. The co-opted outsider prevents the Council from judging entirely within itself.
(b) Reference (section 35). Where a State Bar 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. The reference may follow a complaint or be made suo motu.
(c) Meaning of 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; breach of the Bar Council of India Rules made under section 49(1)(c) is misconduct; and "or other misconduct" reaches conduct outside professional work which shows such unfitness. Examples: misappropriating a client's money; appearing against one's own client; disclosing confidences; gross negligence; attempting to influence a judge; advertising or soliciting work; and taking a contingent fee.
(d) Procedure. The Committee gives notice to the advocate and to the Advocate-General of the State, both of whom have a right to be heard. Under section 42 it has the powers of a civil court: summoning and enforcing the attendance of witnesses, examining them on oath, requiring discovery and production of documents, receiving evidence on affidavit and requisitioning public records. Its proceedings are judicial proceedings for sections 193 and 228 of the Indian Penal Code.
(e) Punishments (section 35(3)). It may dismiss the complaint, or direct that the proceedings be filed; reprimand the advocate; suspend him from practice for such period as it deems fit; or remove his name from the State roll. A suspended advocate is debarred from practising in any court or before any authority or person in India for the period (section 35(4)).
(f) 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. Section 44: review within 60 days.
(g) Transfer and time limit. Section 36: the Bar Council of India's Committee has jurisdiction where the advocate is on no State roll and may withdraw a proceeding to itself. Section 36B: a State Bar Council must conclude a proceeding within one year, failing which it stands transferred to the Bar Council of India.
5. Case law
- 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.
- 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.
- 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.
- Ex-Capt. Harish Uppal v. Union of India (2003): lawyers have no right to strike or boycott courts.
6. Assessment
The scheme gives the profession self-government with judicial oversight: the Bar Councils admit, regulate and punish, and the Supreme Court sits at the head of the appellate line. Its weakness is delay, which section 36B was inserted to address, and the fact that the Committees are drawn from elected bodies. Its strength is that an advocate's livelihood can be taken away only by his own profession, acting judicially, on notice, with the powers of a civil court, and subject to appeal to the highest court in the land.
25.Discuss the working of the Mayor's Court with special reference to the conflict between Mayor's Court and Governor-in-Council.[12]
Answer
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 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.
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.
Constitution. A Mayor and nine Aldermen in each of the three Presidency towns; quorum the Mayor or senior Alderman with two Aldermen; seven of the nine Aldermen to be natural-born British subjects; the Mayor elected annually by the Aldermen; the Aldermen holding office for life and filling their own vacancies.
Character. Crown courts, whose decrees were the King's and appealable to the King-in-Council.
Jurisdiction. All civil suits in the town and its subordinate factories, and testamentary and probate jurisdiction. No criminal jurisdiction: that lay with the Governor and Council as Justices of the Peace in Quarter Sessions.
Appeals. To the Governor-in-Council, and thence to the King-in-Council above 1,000 pagodas. Law applied: English law as it stood in 1726.
3. How it worked in practice
- The judges were merchants, not lawyers, applying an English law none of them had studied.
- 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.
- 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.
- Procedure was English, technical and slow, and no legal profession was provided for.
- At Madras its life was interrupted altogether when the town was captured by the French in 1746; it ceased to exist until the settlement was restored in 1749.
4. The conflict with the Governor-in-Council
Structural causes.
- 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.
- 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 Aldermen's tenure, for life and with power to fill their own vacancies, so the Governor could neither appoint nor remove them.
- Employment: the judges were the Company's servants, so their independence and their careers pulled in opposite directions.
Causes arising from jurisdiction.
- Jurisdiction over Indians, especially in matters of caste and religion, which the Governor said belonged to the parties' own communities and whose disturbance threatened the peace of the settlement.
- The law applied, English law being wholly unsuited to those disputes.
- Process against Company servants, which the Governor sometimes declined to enforce.
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
After the recovery of Madras the Crown settled the conflict in the Governor's favour:
- The Mayor and Aldermen were thereafter appointed by the Governor-in-Council, destroying the Court's independence at a stroke.
- Suits between Indians were excluded unless both parties expressly submitted.
- A Court of Requests was created for small causes up to 20 pagodas.
- The Mayor's Court became in substance a Company court.
6. Assessment
Achievements. The Mayor's Courts introduced English law and judicial procedure into India; established the appeal to the King-in-Council, which endured until 1949; created courts of record; and gave the Presidency towns their first settled civil justice.
Failures. The judges were not lawyers; the Court was not independent of the executive it existed to check; a foreign law was applied to an Indian population; and jurisdiction over Indians in personal matters was a standing grievance. The Charter of 1753 ended the conflict by subordinating the judiciary, a solution in the wrong direction, and the defect was repaired only by the Supreme Court of 1774.
26.Explain the growth of legal profession in India and how it necessitated the enactment of the Advocates Act, 1961?[12]
Answer
For full marks, cover: the pre-British position, exclusion from the Crown courts, regulation in the Company's courts, the Legal Practitioners Acts, the High Courts, the Act of 1926, then the necessity for the Act of 1961 as a separate numbered head, and what the Act did.
Part 1: The growth of the profession
1. Before the British. Under the Hindu system there was learning but no organised profession: the pandit was a scholar who advised the court, not a party's representative. Under Muslim rule the vakil appeared for a party before the Kazi, but he was closer to an agent than a lawyer, appointed by the litigant, belonging to no organised body, and holding no qualification the State recognised.
2. Exclusion from the Crown courts. The Charter of 1726, establishing the Mayor's Courts, made no provision whatever for a legal profession, and untrained men practised. The Charter of 1774, establishing the Supreme Court at Calcutta, empowered it to approve, admit and enrol advocates and attorneys, but by its rules these were confined to British barristers and British attorneys. Indians could not practise in the Crown courts of the Presidency towns, however learned they were, and the same held at Madras (1801) and Bombay (1823).
3. Regulation in the Company's courts. The mofussil position was the reverse, because the Adalats applied Hindu and Muslim personal law and needed practitioners who knew it.
- Bengal Regulation VII of 1793, part of the Cornwallis Code, gave the profession its first legal footing in India: the Sadar Diwani Adalat was to enrol vakils, their fees were fixed by a scale, their duties prescribed, and they were made liable to dismissal for misconduct. Only Hindus and Muslims were eligible.
- Regulation XII of 1833 opened the vakil's office to persons of any nationality or religion who were duly certified.
4. Opening the profession.
- Legal Practitioners Act, 1846: the office of pleader was thrown open to all persons of whatever nationality or religion who were duly certified, and attorneys and barristers of the Supreme Courts were allowed to plead in the Company's courts. The first real breach in the wall between the two systems.
- Legal Practitioners Act, 1853 carried the process further.
5. The High Courts and consolidation.
- Indian High Courts Act, 1861 and the Letters Patent: the new High Courts could approve, admit and enrol advocates, vakils and attorneys, and Indian vakils were admitted to the High Courts.
- Legal Practitioners Act, 1879 consolidated the law, bringing the six grades, advocates, vakils, attorneys, pleaders, mukhtars and revenue agents, under one enactment, with discipline in the High Courts.
- Indian Bar Committee, 1923 (the Chamier Committee) examined the case for a unified Bar and recommended Bar Councils.
- Indian Bar Councils Act, 1926 established a Bar Council for each High Court, gave the profession a measure of self-government in enrolment and discipline, and abolished the distinction between advocates and vakils in the High Courts. It did not unify the grades across the country, and the attorney survived on the original sides of Calcutta and Bombay.
Part 2: How this necessitated the Advocates Act, 1961
- The profession was split into six grades with different rights of audience, so a litigant could not tell what his representative was entitled to do.
- The grades differed from province to province, so there was not one profession but a dozen.
- There was no all-India right of practice. An advocate on the roll of one High Court had no right to appear in another, which was intolerable once India was a single political unit with a Supreme Court whose jurisdiction ran over the whole of it.
- Racial and imperial distinctions survived. The English-qualified barrister retained precedence and privileges the Indian vakil did not have, more than a decade after independence.
- Discipline lay largely with the courts, not with the profession, which was inconsistent with a self-governing Bar in an independent country.
- There was no national body to lay down standards of professional conduct, so practice varied between High Courts.
- Nobody was responsible for legal education. Standards were set by universities with no reference to what the profession required, and the Fourteenth Report of the Law Commission (1958) described Indian legal education in severe terms.
- The governing statutes were colonial and overlapping: the Legal Practitioners Act, 1879, the Indian Bar Councils Act, 1926 and various High Court rules.
These defects were examined by the All India Bar Committee (1953) under Justice S. R. Das, which 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; and by the Fourteenth Report of the Law Commission (1958).
Part 3: What the Act did
- One class of practitioner, the advocate, with senior advocates under section 16 as the only surviving distinction.
- State Bar Councils (section 3) and the Bar Council of India (section 4).
- A right to practise throughout India under section 30; section 29 makes advocates the only class entitled to practise law.
- Enrolment under section 24 and disqualification under section 24A.
- Discipline by the profession: section 35, with appeals to the Bar Council of India (section 37) and the Supreme Court (section 38), and the one-year limit in section 36B.
- Standards of professional conduct under section 49(1)(c), and 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).
It repealed the Legal Practitioners Act, 1879 and the Indian Bar Councils Act, 1926.
Assessment
The history is one of movement from exclusion to equality: outside the Crown courts altogether, then admitted to the Company's courts under an inferior regulated status in 1793, opened irrespective of race in 1846, admitted to the High Courts after 1861, given partial self-government in 1926, and finally in 1961 a single national profession in which no distinction of race or grade survives.
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Colophon
This volume prints the 2017-18 History of Courts paper set by the University of Mumbai for BLS LLB 5 Years Sem 3, with a model answer to each of its 26 questions.
Written and edited by the munotes.in editorial desk. Published by munotes.in, Mumbai.
10 August 2026, revised 11 August 2026.
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