Evolution of the system of Courts in India: Post 1600

In reference to the development of the courts system in India during British times, their origin is in the ancient English Statues and Charters granted by the sovereign of England to the East India Company, which was established by the Charter of Queen Elizabeth I in 1600. The Company was established for purposes of trading only. But by that Charter, it was also empowered to make laws for the good governance of the Company, its employees, officers, etc. and for the better advancement and continuance of trading and to impose punishments and fines in enforcement of those laws3.

The Company, however, gradually established factories and acquired territories in India and for the protection of its territories and for further acquisition, it was empowered to raise an army, make war and peace and exercise governmental functions. It subsequently obtained the grant of Diwani of Bengal, Bihar and Orissa from the Emperor Shah Alam in 1765. The British Crown, however, did not all at once and directly assume the sovereign powers, but as between the Crown and the Company, it was distinctly agreed by an Act of 1813 that the possession and Government of British territories was being continued by the Company without prejudice to the undoubted sovereignty of the Crown. It is this sovereignty, which was reiterated by the Government of India Act, 1833 and that is why the Company remained in possession of territories “in trust for His Majesty”.

 It is with the growth of the East India Company that it became necessary to establish Courts of Justice within the territories under the control of the Company. The Letters Patent of 1726 granted by King George I recited that the Company by strict and equal distribution of justice, very much encouraged not only the British subjects but subjects of princes and natives to resort to and settle the disputes both in civil causes and criminal matters. These Letters Patent established and constituted three several Courts of record known as ‘Mayor’s Court’ (consisting of a Mayor and nine (9) Aldermen) in Fort William in Bengal, in Madras and in Bombay. The right of appeal was to the Governor General in Council. These Letters Patent of 1726 were surrendered by the East India Company to King George II and the Company obtained fresh Letters Patent in 1753 by which the Mayor’s Courts were limited in their civil jurisdiction to suits between persons not natives and suits between natives were directed not to be entertained by them unless by consent of the parties.

On the recommendation of the Committee of Secrecy of the House of Commons, 1773, an Act was passed by Parliament for establishing regulations for the better management of the  affairs of the East India Company, popularly known as the Regulating Act of 1773. This Regulating Act, that is, 13 Geo.Ill C.63, while referring to the charter responsible for the foundation of the Mayor’s Court observed that the court in question as constituted failed to satisfy the needs of the Company’s Presidency of the Fort William in Bengal.

Rise of Chartered & Non-Chartered High Courts:

On the East India Company securing the Dewani of Bengal, Bihar and Orissa in 1765, it set up courts of civil and criminal jurisdiction for the Mofussil. The Moffusil Dewani Adalat was established for administration of civil justice, with a right of appeal to the Sadar Dewani Adalat, Calcutta. These Courts were not the King’s Courts but were the Company’s Courts established by the Company on the authority derived from the Mogul Emperor. This had nothing to do with the Mayor’s Court or its successors.

In 1773 came the Regulating Act, the object of which was to impose control over the Company and its servants both in England and in India. It provided for the appointment of the Governor General and Council in Bengal and empowered the Crown by Charter to erect and establish a Supreme Court at Fort William with full power and authority to exercise and perform all civil, criminal, admiralty and ecclesiastical jurisdictions in the Presidency towns. Pursuant to this Act, King George III issued a Charter establishing a Court of Record called the “Supreme Court of Judicature at Fort William in Bengal” dated 26th March, 1774. The clauses of the Charter show that the jurisdiction of the Supreme Court extended throughout the Presidency towns. The Supreme Court was, thus, a Crown’s Court. Subsequently, the Supreme Courts at Madras and Bombay were established by King George II on 26th December 1800 and 8th December 1823 respectively.

The result of the aforesaid was that while the then Supreme Courts exercised jurisdiction in the Presidency towns, the then Sadar Courts exercised jurisdiction in the Moffusils.

 It is after the Sepoy Mutiny of 1857 that the British Crown took over the territories and the Government of British India from the Company by the Government of India Act, 1858 and, thus, India came to be governed directly by and in the name of the Crown. In 1861, the Indian High Courts Act was passed by the British Parliament which authorized Her Majesty Queen Victoria by Letters Patent to erect and establish High Courts in the three presidencies which were to “have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same presidency abolished under this Act at the time of abolition of such last mentioned Courts.” Thus, the Supreme Courts and the Courts of Sadar Dewani Adalat and Sadar Nizamat (Faujdari) Adalat were abolished. It is in exercise of powers under the Indian High Courts Act, 1861 that the Letters Patent of 1862 was issued establishing the High Courts in the three Presidency towns of Calcutta, Bombay and Madras. In 1865, the Indian High Courts Act was amended so as to authorize the Governor General in Council to alter the local limits of jurisdiction of High Courts and to exercise jurisdiction beyond the limits of the Presidency. This is so far as the Presidency towns are concerned.

 Now coming to the provinces of Punjab and Delhi, it is by an Act by the Governor General of India in Council (Act No. Xxiii of 1865) that the then Chief Court of Punjab was established and the Provinces of Punjab and Delhi were subject to its jurisdiction. This position continued till the Letters Patent constituting the High Court of Judicature at Lahore dated 21st March 1919 was issued by which the High Court at Lahore was established for the provinces of Punjab and Delhi. The Punjab High Court after 1947, continued to be governed by this Letters Patent and the Union Territory of Delhi continued to be within the jurisdiction of the Punjab High Court. Clause 9 of the Letters Patent conferred extraordinary original civil jurisdiction on the High Court.

What is the distinction between the Original Civil Jurisdiction conferred in the Presidency towns and the Lahore High Court? The significant difference is that on the establishment of the Chartered High Court in the Presidency towns there were two kinds of original jurisdiction which were transferred to it – (i) as was being exercised by the Supreme Court in the Presidency towns; (ii) as was being exercised by the Sadar Courts. On the other hand when the Non-Chartered High Courts were established by different Letters Patent including the Lahore High Court it was the second one only which was transferred. The Supreme Courts established in the Presidency towns prior to the establishment of the Chartered High Courts were exercising the ordinary civil jurisdiction in the territories of the Presidency towns while in the Mofussil, the principal Courts of original jurisdiction were the District Courts. It may be added here that on the other hand establishment of City Civil Courts in the Presidency towns, the lower pecuniary jurisdiction from the ordinary civil jurisdiction of the Chartered High Courts came to be vested in those city civil courts.

 The aforesaid is the reason why there is a difference in the wording of the Letters Patent qua the three Presidency towns, which are almost identical, while on the other hand there are the Letters Patent of the Courts like the Lahore High Court.

The Indian Judicial System – A Historical Survey by Justice S. S. Dhavan (1960)