BLS LLB 5 Years Sem 3 History of Courts 2019-20 Question Paper with Solutions

Because the Indian legal profession was fragmented into grades with different rights of audience, advocates, vakils, pleaders, mukhtars, attorneys and barristers, differing from province to province, and a practitioner enrolled in one High Court had no right to appear in another, which was intolerable in an independent country with a Supreme Court whose jurisdiction ran over the whole of it.

The All India Bar Committee (1953) under Justice S. R. Das and the Fourteenth Report of the Law Commission (1958) therefore recommended a unified national Bar, a common roll, and self-government through Bar Councils, and the Act was passed to give effect to those reports.

Because it makes the law certain, accessible and uniform. A code states the whole law on a subject in one authoritative written enactment, so a citizen can know his rights in advance, a court can apply the same rule in every district, and the law need not be searched for through scattered statutes, custom and case law.

In India it was important for a further reason: before the codes, the law a litigant received depended on which court took his case, since the Crown's courts applied English law and the Company's Adalats applied personal law and the Regulations.

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.

Because it is the organ that keeps the other two within the law. The government is a party in a very large proportion of litigation, so 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 what makes Fundamental Rights enforceable: under Articles 32 and 226 a single citizen can compel the State to answer for its conduct, which converts a written guarantee into a remedy.

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

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

A third principle, added by the modern Indian cases, is that the authority must give a reasoned or speaking order.

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, from stare decisis et non quieta movere, "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, that is a decision of a superior court in the same hierarchy; persuasive, which the court 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.

Demerits: rigidity, if a bad decision must be followed; bulk and complexity; illogical distinctions drawn to escape an inconvenient authority; and the retrospective operation of a rule declared after the conduct.

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:

1. 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.
2. 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.
3. The Patna Case (1777 to 1779): Rs 3,00,000 awarded against the Kazi and Muftis of the Patna Provincial Council, which paralysed the country courts.
4. The Cossijurah Case (1779 to 1780): the Council sent sepoys who seized the Court's own Sheriff, and then refused to appear when sued personally.

Meaning and origin

The doctrine requires that the legislative, executive and judicial functions be exercised by three distinct organs, and that no organ exercise the functions of another or control the persons who do. Its classical statement is by Montesquieu in De l'Esprit des Lois (1748): power must be a check upon power, for when the legislative and executive powers are united in one person there can be no liberty, and if the judicial power is joined to either, the judge becomes an oppressor.

Objects

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

In the United States

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

Establishment

The Charter of 1683, granted by Charles II, empowered the Company to establish Courts of Judicature at such places as it thought fit, and the first Admiralty Court was set up at Madras in 1686. Others followed at Bombay and Calcutta.

Composition

The court was to consist of a person learned in the civil law, as Judge-Advocate, together with two merchants appointed by the Company. The first Judge-Advocate at Madras was Sir John Biggs, a doctor of civil law sent out from England in 1686, and he is the first legally trained judge to sit on an Indian bench. After his death the Company fell back on its own servants; John Dolben was appointed in 1692 and afterwards dismissed for corruption.

Jurisdiction

1. Maritime and mercantile causes, including piracy and all trespasses, injuries and wrongs committed on the high seas.

1. It put a legally trained judge on an Indian bench for the first time.
2. It introduced equity and the law merchant into Indian judicial practice.
3. Its decay is one of the reasons the Company petitioned the Crown for a court whose decrees would be recognised in England, which produced the Mayor's Courts of 1726.

4. No equally efficacious alternative remedy, though this is a rule of discretion and not of jurisdiction, and it yields where a Fundamental Right is infringed or the act is wholly without jurisdiction.
5. Clean hands and full disclosure in the applicant.

Against whom it lies

The State and its officers; local authorities; statutory corporations and public bodies; inferior courts and tribunals, to compel them to exercise a jurisdiction they have wrongly declined; and a private body only where it is charged with a public duty.

Against whom it does not lie

1. The President and the Governors, by Article 361.
2. A private individual or body owing no public duty.
3. To enforce a purely contractual obligation.
4. Against a legislature, to restrain it from passing a law.
5. To compel a discretion to be exercised in a particular way, though it lies to compel the authority to exercise its discretion where it has refused to apply its mind at all.

The provision

Section 35 provides that where a State Bar Council has reason to believe that an advocate on its roll is guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee.

Meaning

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

Case law

Bar Council of Maharashtra v. M. V. Dabholkar (1976), advocates snatching briefs at the court door; V. C. Rangadurai v. D. Gopalan (1979), an advocate who deceived an old, deaf client, where the Supreme Court upheld the finding but moderated the punishment, holding that discipline should also reform; and Ex-Capt. Harish Uppal v. Union of India (2003), that lawyers have no right to strike.

2) Describe the facts of the case?

1) The main issue

The main issue was whether the Supreme Court had jurisdiction over the Company's Indian officers and servants in the mofussil for acts done in the course of their official duty.

That single issue contains three questions the Regulating Act, 1773 had left unanswered:

1. Were the Kazi and Muftis, as law officers of a Provincial Council, persons "employed by" the Company, and therefore within the Court's jurisdiction?

5. The Council referred the matter to its law officers, the Kazi and two Muftis, directing them to go to the spot, examine the parties and report.
6. They went to the widow's house, seized the property and made an inventory; it was alleged that she was treated with violence and turned out. They reported her deeds forged.
7. On that report, and without any trial of the issue, the Council decreed the estate to Bahadur Beg, allowing her a one-fourth share.
8. She refused it, took sanctuary in a dargah, and sued in the Supreme Court at Calcutta against Bahadur Beg, the Kazi and the Muftis for assault, battery, false imprisonment, breaking her house and depriving her of her property.
9. The Supreme Court assumed jurisdiction, held the proceedings illegal, awarded the widow Rs 3,00,000 in damages, and, on non-payment, committed the defendants to prison.

1) Identify the case in question? What was the defence taken by the defendant in the present case?

2) What was the decision taken by the Supreme Court?

1) The case, and the defence

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

The defence taken:

1. The account was disputed and unsettled. The sum said to be due had never been determined by any judicial enquiry, so until it was, no ascertained sum was owing from him.

2. That a surety, or an ostensible holder, is not to be imprisoned until the person primarily liable has been called on to pay the arrears and has been proved insolvent.
3. That the Court had jurisdiction to examine the legality of the confinement, the liberty of the subject being in question, and that the return made by the revenue authorities was defective.

The consequences

The Council protested that the decision struck at the collection of the revenue, on which the Company's existence in Bengal depended, and that if defaulting sureties and farmers could obtain bail from Calcutta the summary process by which arrears were realised would be unworkable. The conflict, with the Kamaluddin, Patna and Cossijurah cases, went before a parliamentary Select Committee, and the Act of Settlement, 1781 expressly excluded revenue matters, and acts done in the collection of the revenue, from the Supreme Court's jurisdiction.

3. 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.
4. Shortly afterwards Nandkumar was arrested. He was first charged, with Fowke and Radhacharan, with conspiracy, on the complaint of Mohan Prasad. 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.
5. He objected that the Court had no jurisdiction over him, being neither a British subject nor employed by the Company, and that the act charged preceded the Court's creation. The objection was overruled.
6. 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.
7. His petitions for leave to appeal to the King-in-Council and for a reprieve were refused.
8. He was hanged on 5 August 1775.

2) Why it is called the Judicial Murder of Raja Nand Kumar

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

Consequences

The case began the enmity between the Supreme Court and the Governor-General in Council, established that the Court would apply English law to Indians in Calcutta, and, with the Kamaluddin, Patna and Cossijurah cases, led to the Act of Settlement, 1781.

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, the Advocates Act, 1961, and an assessment.

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. The Company's early courts, and exclusion from the Crown courts

1. The Charter of 1726, establishing the Mayor's Courts, made no provision whatever for a legal profession. Untrained men practised, and the standard was very low.

1. 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. This is the first real breach in the wall between the two systems.
2. Legal Practitioners Act, 1853 carried the process further.

5. The High Courts and consolidation

1. Indian High Courts Act, 1861 and the Letters Patent: the new High Courts, replacing both the Supreme Courts and the Sadar Adalats, could approve, admit and enrol advocates, vakils and attorneys, and Indian vakils were admitted to the High Courts.
2. 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.

3. A right to practise throughout India under section 30, in all courts including the Supreme Court; section 29 makes advocates the only class entitled to practise law.
4. Enrolment under section 24 and disqualification under section 24A.
5. Discipline by the profession: section 35, with appeals to the Bar Council of India (section 37) and the Supreme Court (section 38).
6. Standards of professional conduct under section 49(1)(c), and control of legal education under section 7(1)(h) and (i).

7. Assessment

The history is one of movement from exclusion to equality. The Indian practitioner began outside the Crown courts altogether, was admitted to the Company's courts under a regulated and inferior status in 1793, was opened to the profession irrespective of race in 1846, entered the High Courts after 1861, obtained partial self-government in 1926, and finally in 1961 a single national profession in which no distinction of race or grade survives.

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

1. The judges were merchants, not lawyers, applying an English law none of them had studied.
2. The Charter gave no direction on the law applicable to Indians, so English rules of inheritance, marriage and property were applied to Hindus, Muslims and Parsis for whom they were unsuited.

3. The Aldermen's tenure, for life and with power to fill their own vacancies, so the Governor could neither appoint nor remove them, which he deeply resented.
4. Employment: the judges were the Company's servants, so their independence and their careers pulled in opposite directions.

Causes arising from jurisdiction.

1. 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.
2. The law applied, English law being wholly unsuited to those disputes.
3. Process against Company servants, which the Governor sometimes declined to enforce.

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.

2. Dicey's three principles

A. V. Dicey (1885): supremacy of law, or absence of arbitrary power, so that no man may be punished except for a distinct breach of law established before the ordinary courts; equality before the law, so that every man whatever his rank is subject to the ordinary law and the ordinary tribunals; and the constitution as the result of the ordinary law of the land, its principles being the outcome of judicial decisions in cases brought by private persons.

3. Criticism of Dicey

He misunderstood droit administratif, which often gave the citizen a better remedy against the State than English law did; discretion is unavoidable in a welfare State, the modern question being whether it is guided and reviewable; equality is never absolute; and his third principle is peculiar to England.

4. Constitutional foundations in India

The Preamble; Article 13, voiding laws inconsistent with Fundamental Rights; Article 14; Article 21; Articles 32 and 226; Article 50; and Article 300, under which the Government may be sued.

5. The State is answerable in its own courts, and the courts have awarded compensation for the violation of Fundamental Rights: Rudul Sah v. State of Bihar (1983), Nilabati Behera v. State of Orissa (1993).
6. Independence of the judiciary was strengthened, through the collegium (Second and Third Judges Cases; the NJAC case, 2015), security of tenure, and salaries charged on the Consolidated Fund.
7. Access to justice was widened by relaxing locus standi for public interest litigation, and by Article 39A with the Legal Services Authorities Act, 1987.
8. Control of the executive through the writs under Articles 32 and 226, which is the point at which the doctrine becomes usable by an individual.
9. The low point and its correction. ADM Jabalpur v. Shivkant Shukla (1976) held the habeas corpus remedy suspended during the Emergency; Justice H. R. Khanna's dissent was vindicated by the Forty-fourth Amendment, 1978, which made Articles 20 and 21 non-suspendable, and the decision was expressly overruled in K. S. Puttaswamy v. Union of India (2017).

For full marks, cover: the origin, the pre-independence Commissions in outline, then the modern Commission in detail: nature, terms of reference, method, major reports and results, 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.

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. Major reports and results

1. Fourteenth Report (1958), Reform of Judicial Administration, in two volumes: the most influential of all, the foundation of the Advocates Act, 1961, of the Legal Services Authorities Act, 1987, and of much of the reform of court administration.
2. First Report (1956) on the Liability of the State in Tort.

5. Its role, stated as functions

Reviewing the statute book and identifying what is obsolete; modernising the law to meet changed conditions and the Directive Principles; reforming judicial administration, above all to reduce delay and cost; advising the Government and the Supreme Court on references; providing expert, published, non-political material with a draft Bill attached; and providing a channel for public consultation on law reform.

6. Limitations

1. It is non-statutory and advisory; it cannot compel the Government to act, and many reports have lain unimplemented for decades.
2. It is constituted by the executive, whose choice its terms of reference and membership are, so its agenda is not independent.
3. There are often long gaps between one Commission and the next.
4. It has no power to review the working of the reforms it recommends.
5. Its recommendations on politically contentious subjects, the Uniform Civil Code, capital punishment, sedition, tend not to be implemented.

For full marks, cover: the background, the general features briefly, and then, since the question says "with special reference to the administration of justice", the Federal Court and the High Courts in detail, followed by criticism and 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, and it is the principal source of the Constitution of India.

2. The general features, briefly

1. An All-India Federation of the British Indian provinces and the princely states was proposed. Too few states acceded, so the federation never came into being and only the provincial part was brought into force, in 1937.

2. Composition: a Chief Justice and not more than six judges, appointed by His Majesty, holding office until 65, removable only on the ground of misbehaviour or infirmity of mind or body on the recommendation of the Judicial Committee of the Privy Council. First Chief Justice Sir Maurice Gwyer; first Indian judge Sir Shah Muhammad Sulaiman; last Chief Justice Sir Harilal Kania, who became the first Chief Justice of India.
3. Original jurisdiction, and exclusive: disputes between the Federation and a Province or State, or between Provinces or States, so far as they involved a question of law or fact on which the existence or extent of a legal right depended. Only a declaratory judgment could be given.
4. Appellate jurisdiction: from a High Court where it certified a substantial question of law as to the interpretation of the Act or of an Order in Council. Widened by the Federal Court (Enlargement of Jurisdiction) Act, 1947, which transferred the Privy Council's civil appellate jurisdiction.
5. Advisory jurisdiction: the Governor-General could refer a question of law of public importance.
6. It was not final. An appeal lay from it to the Privy Council in London, which is the point most answers miss.

6. Writ jurisdiction remained with the three chartered High Courts of Calcutta, Bombay and Madras only, and only within their original civil jurisdiction. The other High Courts had none.
7. Administrative control over subordinate courts was shared with the Provincial Government, and the District Magistrate exercised both executive and judicial functions.

5. Criticism

The Act was rigid, with no provision for amendment by an Indian body; it retained wide special powers for the Governor-General and Governors; 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, the District Magistrate remaining both.

Indian opinion was hostile: Nehru called it a machine with strong brakes and no engine, and Jinnah described it as thoroughly rotten and unacceptable.

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.

3. Classes of advocates, enrolment and the right to practise

Section 16: senior advocates and other advocates. 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, conviction under the Untouchability (Offences) Act, or dismissal from State service on such a charge, 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.

4. Punishment for misconduct: 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.

(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

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.