BLS LLB 5 Years Sem 3 History of Courts 2018-19 Question Paper with Solutions

The dual system was the existence side by side, before 1861, of two systems of courts of entirely dissimilar origin:

1. the Crown's courts in the Presidency towns, that is the Supreme Courts at Calcutta, Madras and Bombay, established by Royal Charters under Acts of Parliament, staffed by English barristers and applying English law; and
2. the Company's courts in the mofussil, that is the Diwani and Faujdari Adalats and above them the Sadar Diwani Adalat and Sadar Nizamat Adalat, established by the Company under its own Regulations, staffed by covenanted civil servants and applying Hindu and Muslim personal law, custom and the Regulations.

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

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

The objective was to end the dual system of courts by abolishing the Supreme Courts (the Crown courts of the Presidency towns) and the Sadar Diwani and Sadar Nizamat Adalats (the Company's courts) and merging them into a single High Court at Calcutta, Bombay and Madras.

Its object was therefore uniformity of justice: one court at the head of each Presidency exercising the jurisdiction of both former systems, so that a litigant's rights no longer depended on which of two parallel systems took his case.

Law reports are significant because they make the doctrine of precedent workable. Under Article 141 the law declared by the Supreme Court binds all courts, and stare decisis requires a court to follow an earlier decision, but neither is possible unless that decision has been accurately recorded and published.

They therefore give the law certainty and uniformity, secure equality before the law by allowing like cases to be decided alike, permit the development of the law by making a decision available to be followed, distinguished or overruled, and act as a check on judicial arbitrariness.

The main conflict was between the Mayor's Courts established by the Charter of 1726 and the Governor-in-Council of each Presidency, over the extent of the Court's jurisdiction and its independence.

Its cause was structural: the Mayor's Court held a royal charter and considered itself the King's court, while the Governor-in-Council was the Company's government and was at the same time the appellate court from that Court and the employer of every judge who sat in it. The dispute was sharpest over the Court's jurisdiction over Indians in matters of caste and religion.

What legal education is for

Legal education in India serves four distinct objects, and it is worth separating them because the Bar Council's rules and the National Law University curriculum are built on all four:

1. To train practitioners. To produce advocates competent to advise, draft and argue, which requires not only knowledge of doctrine but skill in drafting, pleading, conveyancing and advocacy. This is why the Bar Council of India made practical papers compulsory: moot court, drafting, professional ethics and clinical work.
2. To produce judges, law officers and legal administrators. The subordinate judiciary, the public prosecutors, the law officers of the Union and the States and the legal departments of government are all staffed from the law schools.

How the objects have been pursued

The Fourteenth Report of the Law Commission (1958) condemned the part-time, examination-oriented legal education then prevailing and recommended a full-time course with the case method and practical training. From that came the five-year integrated LL.B. after Class XII (1982); the National Law Universities, beginning with NLSIU Bangalore (1987) on Dr N. R. Madhava Menon's initiative, residential and full-time with moot courts and clinical work; compulsory practical papers; and the All India Bar Examination (2010).

Assessment

The objects are sound and unevenly achieved. The National Law Universities pursue all four; the great majority of the roughly 1,500 law colleges pursue the first indifferently and the rest hardly at all. Teaching posts are poorly filled because practice pays better, and the Bar Council is both the regulator of legal education and the representative of the profession, which the Law Commission has repeatedly noted as a conflict.

4. Distribution of powers in three lists, Federal, Provincial and Concurrent, with residuary powers in the Governor-General.
5. A Federal Court, inaugurated 1 October 1937, with exclusive original jurisdiction in Federation-Province disputes, appellate jurisdiction on a certificate of a substantial question of interpretation of the Act, and advisory jurisdiction. An appeal lay from it to the Privy Council, so it was not final.
6. The High Courts continued as courts of record, judges appointed by His Majesty, retiring at 60, removable on a Privy Council report, with superintendence narrowed by section 224(2) and writ jurisdiction confined to the three chartered High Courts within their original civil jurisdiction.
7. Bicameral legislatures in six provinces; the franchise extended to about ten per cent of the population; separate electorates continued and extended.
8. Abolition of the Council of India; a Reserve Bank of India and Federal and Provincial Public Service Commissions.

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; they are implied by the courts 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 is enough, because justice must not only be done but be seen to be done.

Exclusions

The principles may be excluded by express statutory provision, or in cases of urgency, where a preliminary inquiry does not decide 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.

4. Removal only by an address of both Houses with a special majority, on proved misbehaviour or incapacity (Articles 124(4), 217(1)(b)), with the Judges (Inquiry) Act, 1968.
5. Salaries and expenses charged on the Consolidated Fund (Articles 125, 221, 146(3), 229(3)), not voted by the legislature and not variable to a judge's disadvantage.
6. Conduct not open to discussion in the legislatures except on a removal motion (Articles 121, 211).
7. Power to punish for contempt as courts of record (Articles 129, 215).
8. No practice after retirement (Articles 124(7), 220).
9. Transfer only on the collegium's recommendation, in the public interest and never as punishment (Article 222; Sankalchand Sheth, 1977).
10. Control over the subordinate judiciary vested in the High Court (Articles 233 to 235).
11. Independence of the judiciary is part of the basic structure.

The Mayor's Court of 1687

Under the Charter of 1687, granted by the Company under powers from James II, the Corporation of Madras, inaugurated on 29 September 1688, consisted of:

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

The Mayor and at least three of the Aldermen were to be English or British subjects; the remaining Aldermen and the Burgesses could be of any nationality, and Indians, Portuguese and Armenians sat on it. A Recorder, skilled in the laws of England, was to assist. The Mayor and Aldermen together formed the Mayor's Court, which was a court of record deciding according to justice and good conscience, with an appeal to the Admiralty Court. The first Mayor was Nathaniel Higginson.

The Mayor's Court of 1726

Under the Charter of 1726, granted by George I, a Mayor's Court was established in each of the three Presidency towns and consisted of:

Meaning

A judicial precedent is a decision of a court which serves as an authority for deciding a later case raising the same point of law. The doctrine that a court should follow such decisions is stare decisis, "to stand by decided matters and not to disturb settled points".

Ratio decidendi and obiter dicta

What binds is the ratio decidendi, the legal principle on which the decision rests, applied to the material facts. Obiter dicta, observations made by the way and not necessary to the decision, are of persuasive value only.

Kinds

Authoritative or binding, a decision a later court must follow; persuasive, which it may consider but need not follow, such as a decision of a coordinate High Court, of a foreign court, or obiter dicta; and original, laying down a new rule, as against declaratory, applying an existing one.

The position in India

Those three facts point to the proceedings at Calcutta in the first months of 1775, before the Supreme Court established by the Charter of 1774, in which English law and English procedure were applied to Indians for the first time. The proceeding which literally preceded Nandkumar's trial for forgery, and out of which that trial grew, was the prosecution of Nandkumar, Fowke and Radhacharan for conspiracy on the complaint of Mohan Prasad. The answer below deals with the charges in both proceedings, which covers the question on either reading, and does not attach a case name the paper has withheld.

i) The charges framed

In the conspiracy proceeding. Mohan Prasad complained that Nandkumar, together with Joseph Fowke and Radhacharan, had conspired to fabricate accusations, in substance that the charge of bribery which Nandkumar had laid against Warren Hastings was a manufactured one. The proceeding was begun first and was still pending when the second charge was brought.

2. Forgery was not a capital offence under Indian law, Hindu or Muslim. Under the law Nandkumar lived by, the punishment would not have been death.
3. The prosecution was suspiciously timed. A five-year-old charge was revived only after Nandkumar accused the Governor-General of taking bribes.
4. The judge should not have sat. Impey and Hastings were schoolfellows and lifelong friends, and Nandkumar was the accuser of the judge's closest friend. Impey afterwards accepted from Hastings the presidency of the Sadar Diwani Adalat with a salary, and was recalled and impeached over it.
5. The refusal of a respite. The Court refused leave to appeal to the King-in-Council and refused to postpone the execution, although the points of law were novel and substantial. Refusing time made the error irreversible.
6. The setting. A Brahmin was tried by an English jury under a foreign law and hanged, causing deep and lasting resentment in Bengal.

For these reasons Indian legal historians describe the trial as a judicial murder, a killing carried out through the forms of law.

3. The Court issued process for the Raja's arrest.
4. The Raja applied to the Governor-General and Council, who took the opinion of the Advocate-General 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.
5. 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.
6. 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.
7. 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.
8. The Court's process having been defeated by force, the quarrel went to Parliament, which appointed a Select Committee (the Touchet Committee). On its report Parliament passed the Act of Settlement, 1781.

3. 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 and had no notice of the English rules by which they were being judged.
4. 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, and who was to decide when they differed. 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 acts done in their official capacity; 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 that Hindu and Muslim law be applied to Hindus and Muslims; and made the Sadar Diwani Adalat a court of record with an appeal to the King-in-Council.

2. He was liable, if at all, only as a surety. A surety cannot be proceeded against until the principal debtor, the person primarily liable for the revenue, has been called on to pay and has been found unable to do so.
3. He had acted in a representative capacity, as treasurer of the revenues of the Dacca provincial division, so the sums passing through his hands were not his personal liability.
4. His imprisonment was therefore illegal, being for a sum still in dispute and against a person not primarily liable, and he sought the protection of the Supreme Court by habeas corpus.

ii) The decision of the Supreme Court

The Court upheld the defence and granted relief, holding:

1. That where the account is disputed, the person proceeded against must be admitted to bail until the enquiry into his obligation to pay has been completed, since imprisonment cannot precede the determination of liability.

1. The Court of Directors' term raised from one year to four, one quarter retiring each year.
2. The voting qualification in the Court of Proprietors raised from £500 to £1,000 of stock.
3. The Directors required to lay revenue correspondence before the Treasury and civil and military correspondence before a Secretary of State.

B. The government in India

1. The Governor of Bengal became Governor-General of Fort William in Bengal, with a Council of four: Warren Hastings with Clavering, Monson, Barwell and Francis, named in the Act for five years.
2. Decisions by majority, the Governor-General having a casting vote only in the case of equality.
3. Bombay and Madras subordinated to Bengal in matters of war and peace and in making treaties, except in cases of imminent necessity or on direct orders from the Company.
4. The Governor-General in Council empowered to make rules, ordinances and regulations, provided they were registered in the Supreme Court.
5. Private trade prohibited, and the acceptance of presents from Indians forbidden.

2. It introduced the prerogative writs. Habeas corpus, mandamus, certiorari, prohibition and quo warranto became available in India for the first time, and the Kamaluddin and Swaroop Chand cases show them protecting personal liberty against the executive.
3. It applied a known and settled law, English law, administered by men trained in it.
4. It subjected the Company's servants to a court they did not control.
5. It began the centralisation of Indian administration, which the Charter Act of 1833 completed.

The negative impact

1. The Court's jurisdiction was left undefined. "His Majesty's subjects" and persons "employed by" the Company were not explained.
2. The relation between the Court and the Governor-General in Council was not stated at all, so their disputes had no arbiter.
3. English law was applied to Indians who had never lived by it.
4. The Court sat only at Calcutta, so a mofussil litigant had to travel hundreds of miles to a court whose language and procedure were foreign to him.

4. Assessment

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

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

3. Criticism of Dicey

He misunderstood droit administratif; discretion is unavoidable in a welfare State, the question being whether it is guided and reviewable; equality is never absolute; and his third principle is peculiar to England.

4. The impact on the growth of the legal structure in India

This is the half of the answer the question is really about, and it is best given chronologically, because the doctrine did not arrive at once.

1. The Company's courts before 1772: the executive as judge. In the Presidency towns the Mayor's Courts were staffed by the Company's servants and their appellate court was the Governor-in-Council, so the executive judged appeals from its own employees. There was no Rule of Law in any sense.

4. Codification and amalgamation, 1833 to 1861: the law made knowable and uniform. The Charter Act of 1833 gave British India one legislature and provided for the Law Commission; the codes of 1859 to 1861 gave it one body of law; and the Indian High Courts Act, 1861 gave it one hierarchy of courts. A Rule of Law requires a law that can be known and a court that applies it uniformly, and both were supplied in those three decades.

5. The Constitution, 1950: the principle made enforceable by an individual. The Preamble; Article 13, voiding laws inconsistent with Fundamental Rights; Article 14; Article 21; Articles 32 and 226, giving every citizen a direct remedy; Article 50; and Article 300, under which the Government may be sued. For the first time the doctrine was not merely a policy of government but a right of the governed.

For full marks, cover: the position before 1961, the committees, the objectives as a numbered list, the machinery, the changes point by point, and an assessment.

1. The position before 1961

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

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

4. The machinery

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

5. How the Act changed the profession

1. One class of practitioner. Vakils, pleaders, mukhtars, attorneys and the special status of barristers were abolished; only advocates are recognised, with senior advocates under section 16 as the single surviving distinction.
2. An all-India right of practice. Under section 30, every advocate on a State roll may practise as of right throughout India, in all courts including the Supreme Court. Before the Act an advocate's professional life was bounded by the High Court that had enrolled him.

6. Assessment

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

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

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.

3. Forty-first Report (1969) on the Code of Criminal Procedure, on which the Code of Criminal Procedure, 1973 was based, including the separation of the judicial from the executive magistracy which gave effect to Article 50.
4. Reports on capital punishment: the Thirty-fifth (1967) for retention, the Two hundred and sixty-second (2015) for abolition except for terrorism and waging war.
5. One hundred and fifty-fourth Report (1996), which led to plea bargaining in 2005.
6. Two hundred and thirtieth and Two hundred and forty-fifth Reports on judicial reform, arrears and judge strength.
7. Reports on arbitration, contributing to the Arbitration and Conciliation Act, 1996, and successive reports on the repeal of obsolete laws.

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.

7. Assessment

The Law Commission is the principal institutional engine of law reform in India, and has been so for nearly two centuries under two very different constitutions. The pre-independence Commissions gave India the codes, and with them 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.

2. The Crown's courts

Which courts. The Mayor's Courts of 1726 in the three Presidency towns; then the Supreme Courts at Calcutta (1774), Madras (1801) and Bombay (1823), established by Royal Charter under Acts of Parliament.

Constitution. A Chief Justice and three puisne judges, appointed by the Crown, who had to be English barristers of not less than five years' standing.

Jurisdiction.

1. Territorially, the Presidency town and its subordinate factories, though the Supreme Court's writ ran over Bengal, Bihar and Orissa for the persons within its reach.
2. Over persons: British subjects resident in the Presidency; the Company's servants; and any other person, including an Indian, who submitted in writing to the jurisdiction or who resided in the town.
3. Subject matter: civil, criminal, equity, ecclesiastical and admiralty, and the prerogative writs, with supervision over the inferior courts of the town.
4. Appeal to the King-in-Council.

2. Over persons, the whole population of the districts, without distinction of race, subject to the Supreme Court's competing claims over persons "employed by" the Company.
3. Subject matter, civil and revenue causes under the Diwani, and criminal causes under the Nizamat, which was in form the Nawab's until Cornwallis took it over in 1790.
4. Appeal through the hierarchy to the Sadar Diwani Adalat, and after 1781 from it to the King-in-Council in high-value suits.

Law applied. The Regulations, Hindu and Muslim personal law, custom, and where none applied, justice, equity and good conscience.

4. The comparison

1. Conflict of jurisdiction over the same person. The Regulating Act gave the Supreme Court jurisdiction over persons "employed by" the Company without defining the phrase, so a zamindar, a revenue farmer or a Kazi might be claimed by both systems. The Patna and Cossijurah cases are the result.
2. Different law for the same dispute, so the outcome could turn on which court took the case, which is the negation of equality before the law.
3. Forum shopping by parties who could bring themselves within one system.
4. No common superior in India, the only meeting point being the King-in-Council five thousand miles away.
5. No uniform precedent, the two appellate lines being separate.
6. 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.

For full marks, cover: precedent, then law reporting, each with its own section, and then a third part on what the two did together, because that is what the question is asking about.

Part 1: Judicial precedents

Meaning. A judicial precedent is a decision of a court which serves as an authority for deciding a later case raising the same point of law. The doctrine that a court should follow such decisions is stare decisis.

Ratio and obiter. What binds is the ratio decidendi, the principle on which the decision rests. Obiter dicta are of persuasive value only.

Kinds. Authoritative or binding; persuasive, such as a decision of a coordinate High Court, of a foreign court, or obiter dicta; original and declaratory.

3. The Indian Law Reports Act, 1875 made reporting official, requiring publication in the Indian Law Reports and providing that no court should be bound to hear cited any report of a High Court decision other than one published under the authority of the Government.
4. The Privy Council's decisions bound every Indian court; after 1950 the Supreme Court Reports carry the Supreme Court's decisions.

Advantages. It makes precedent workable; gives certainty and uniformity; secures equality before the law; enables the development of the law; acts as a check on judicial arbitrariness; saves judicial time; and supplies material for legal education and law reform.

Part 3: What the two did together for the administration of justice in India

1. They created a single legal system out of many courts. Before 1861 the Crown's courts and the Company's courts had separate appellate lines and no common authority in India. Precedent, working through the Privy Council and later the Supreme Court, made one law apply in all of them.

6. They made constitutional law possible. The basic structure doctrine of Kesavananda Bharati (1973), the expansion of Article 21 in Maneka Gandhi (1978) and public interest litigation exist only because decisions are reported, cited and followed.
7. They made the judiciary accountable. A judgment that will be published, read and criticised is written differently from one that will not.

Assessment

Precedent and reporting are one institution in two halves: the doctrine without the reports is unusable, and the reports without the doctrine are merely a record. Together they gave India a single, ascertainable and developing law administered alike in every court, which is what "the administration of justice" means. The standing criticism is the sheer volume of case law, which has made legal research a specialised skill.