ABOLITION OF DUAL JUDICIAL SYSTEM

By | September 24, 2016

The 1857 revolt/mutiny opened the eyes of the British Parliament to the corrupt administration of the Company and to the total lack and complete dissatisfaction of the natives with the administration of justice in India. It was felt that more and more natives should be allowed to participate in the governance of the country if the British were to have a firm hold in India. Thus, the company’s government in British India was replaced by the direct rule of the Crown in one thousand eight hundred fifty eight. It was also accepted, in principle, that more and more Indians would be inducted into the superior civil and judicial service and to make the participation of the Indians more and more effective.

The efforts were made to abolish the dual system of courts which was defective in many respects. The respective jurisdiction of the Company’s Courts (that is Sadar Adalats and other inferior native courts) and the Supreme Courts was not clearly marked out nor was a clear relationship established between the two sets of courts. One followed the English law and the other followed the regulations made by the Company. Therefore, the dispute with respect to jurisdiction frequently arose which put the parties and the Government in awkward position. Very often the two courts would assume jurisdiction on the same persons/ subject-matter and would even give conflicting judgments.

In Morion Verses Mehdi Ali Khan, for instance, the plaintiff, a resident of Calcutta, brought a suit against Khan, a resident of Oudh, in the Supreme Court for recovery of certain debts alleged to have been contracted by Khan’s servants at Calcutta. Khan was subjected to Court’s jurisdiction and his goods and properties in Calcutta seized The Court assumed jurisdiction on the basis of ‘constructive inhabitancy’ which meant that if the person resident in mofussil had some property, agent or commercial transaction in Calcutta he was held to be a ‘constructive inhabitant’ of the town and thus amenable to the jurisdiction of Supreme Court in addition to that of adalats.

In 1829, Sir Metcalfe advocated merger of the two systems. Lord Bentick observed, ‘Existence of two concurrent jurisdictions with the same limits is an anomaly which was productive of very considerable inconvenience as there had been cases in which opposite decisions had been come to by the Sadar Diwani Adalat and the Supreme Court on the same rights, supported by the same evidence.’

Sir Grey, Chief Justice of Calcutta Supreme Court said ‘Lamentable as it is that such a feeling should exist, the exercise of the powers of one system is viewed with jealousy by those who are connected with other. In one thousand eight hundred thirty four, the Court of Directors observed, ‘A judicature utterly uncontrollable by the Government and on the contrary controlling the Government, recognizing the highest authorities of the State only as private individuals, and the tribunals which administer justice in all its forms to the great body of the people only as foreign tribunals, is surely an anomaly in the strictest sense of the word.’

Thus, opinion was slowly building up that in the interest of better administration of justice in India, it was desirable to consolidate the two judicial systems into one so that the legal knowledge of the English lawyers might be united with the intimate knowledge of the customs, habits and laws of the natives possessed by the judges of the adalats. Process of codification and the resultant Indian Penal Code, Criminal Procedure Code, and, Civil Procedure Code paved the way for unification of the two systems.

In one thousand eight hundred fifty eight, the Second Law Commission was authorised to examine the judicial system working in India and to make suggestions to establish a uniform judicial system by amalgamating the dual system of courts. On the recommendation of the Commission, the Parliament passed the Indian High Courts Act, one thousand eight hundred sixty one, providing for the establishment of High Courts in the three presidencies (Bombay, Madras and Calcutta) in place of Supreme Courts and the Sadar Adalats.

HIGH COURTS AND THE PRIVY COUNCIL

After the abortive attempt of the people of India in 1857 to regain independence, the Company’s government in British India was replaced by the direct rule of the Crown in one thousand eight hundred fifty eight. An immediate and quite significant effect of this political change in the administration of justice was the move to abolish the duality of the courts that existed under the Company. The Sadar Adalats, which were the Courts of the Company, and the Supreme Courts, which were the Courts of the Crown, were proposed to be replaced by the High Courts.

The then existing system was defective in many respects. The respective jurisdictions of the Company’s Courts and the Supreme Courts were not clearly marked out. Nor a clear relationship was established between the two sets of courts. The procedures and laws applied by them were quite different — one following the English law and the other following the local regulations made by the Company. Therefore, dispute with respect to jurisdiction frequently arose which put the parties and the Government in awkward position and to difficulty. The criticism of the existing system began to stem from the very beginning of the 19th century, but nothing could practically be done till the Second Law Commission of one thousand eight hundred fifty eight was authorized to suggest the ways and means for amalgamation of the two systems. On the recommendation of the Commission the Parliament passed the Indian High Courts Act, one thousand eight hundred sixty one providing for the establishment of the High Courts in the three Presidencies in place of the Supreme Courts and the Sadar Adalats.

HIGH COURTS

The Act of one thousand eight hundred sixty one, titled as “an Act for establishing High Courts of judicature in India”, was a short legislation of 19 sections only. It authorized Her Majesty the Queen of England to establish High Courts by issuing Letters Patent to Presidency towns wherever and whenever She deemed fit. The High Court was to consist of a Chief Justice and the other puisne Judges not exceeding 15 in number. The qualifications of the Judges were laid down in the Act. A person could be appointed Judge of High Court if he was either:—

(1) a barrister of not less then 5 years standing, or

(2) a member of the covenanted civil service of at least 10 years standing who had served as Zila Judge for at least 3 years in that period, or

(3) a person having held judicial office not inferior to that of Principal Ameen or Judge of a Small Cause Court for at least 5 years, or

(4) a person who had been a pleader of a Sadar Court or a High Court for at least 10 years.

At least one third of the Judges of the High Court, including the Chief Justice, had to be barristers and the other one third of the Judges had to be members of the covenanted civil service. The Judges held their office during the pleasure of Her Majesty.

The jurisdiction of each High Court depending on the Letter Patent issued by Her Majesty. She could give them power to exercise all civil, criminal, admirality and vice-admirality, testamentary, intestate and matrimonial jurisdiction. She could also confer on them original and appellate jurisdiction and all such powers and authority with respect to the administration of justice in the presidency, as she thought fit. The Letters Patent could restrict the original jurisdiction of the court to the Presidency town. Unless the Crown (the Government of England) otherwise provided the High Courts had to exercise the jurisdiction of the courts abolished by the Act of one thousand eight hundred sixty one.

The High Courts were given supervisory powers on all courts subject to their appellate jurisdiction. The High Courts could call for returns from any court subordinate to them or could transfer any suit or appeal from one court to another and could make general rules for regulating the procedure of lower courts.

Her Majesty was authorised to establish the High Courts even beyond the territory of Presidency limits and could also transfer any territory from the jurisdiction of one High Court to another High Court. After issuing one Letter Patent Her Majesty could rescind it within three years and could issue new Letters Patent to bring change in any High Court.

Under the Act of one thousand eight hundred sixty one, the Crown established High Courts by issuing Charters on fourteenth May, 1862 for Calcutta and on twenty sixth June, 1862 for Madras and Bombay. These Charters were further modified by issuing fresh Charters on twenty eighth December, 1865. The three Charters contained identical provisions and established the High Courts with like powers and jurisdiction. The jurisdiction of these Courts could be understood by considering the illustrative case of Calcutta. The High Court of Calcutta was given the following original and appellate jurisdiction.

  1. Original jurisdiction

The Court had original jurisdiction in the following matters—

(1) Civil jurisdiction—The original civil jurisdiction of the Court was of two types ordinary and extraordinary. The ordinary civil jurisdiction extended to the town of Calcutta or to such local limits as from time to time could be prescribed by law of a competent legislature in India. All suits of the value of Rupees one hundred or more and which were not cognizable by the Small Cause Courts at Calcutta were cognizable before the High Court under this jurisdiction. The original jurisdiction could be invoked only if—

(a) the immovable property was situated within the town of Calcutta; or

(b) the cause of action wholly or partly arose in Calcutta; or

(c) the defendant was dwelling, or carrying on business, or working for gain in Calcutta.

Under its extra-ordinary civil jurisdiction the High Court could call a case pending in any lower court subject to its superintendence and could decide that case itself. This jurisdiction could be exercised in a case where the parties agreed to such exercise or the High Court thought it proper to impart justice.

(2) Criminal Jurisdiction—The ordinary original criminal jurisdiction of the High Court was almost the same as that of the Supreme Court which was replaced by the High Court and extended to the local limits to which civil jurisdiction of the High Court extended. However, an extra-ordinary original criminal jurisdiction was given to the High Courts which was not available to the Supreme Court. Under that jurisdiction the High Court could hear any criminal case against any person within the cognizance of any court, which was subject to the superintendence of the High Court, if such case was referred to the High Court by the Advocate-General or by any Magistrate or any other officer specifically empowered for that purpose.

(3) Revenue jurisdiction—The High Court was given jurisdiction to hear revenue cases also, which were precluded from the jurisdiction of the Supreme Court, by the Act of Settlement, 1781.

(4) Admiralty jurisdiction—The Admirality and Vice-Admirality jurisdiction was also given to the High Court. It could hear all civil, criminal, maritime and prize cases.

(5) Testamentary and Miscellaneous jurisdiction—The High Court was given similar testamentary, intestate and probate jurisdiction as was enjoyed by the Supreme Court. It also worked as the Court of Wards for the administration of the estate and person—lunatics, idiots, and minors.

  1. Appellate jurisdiction

The appellate jurisdiction of the High Court was of two types—

(1) Civil jurisdiction—The High Court could hear appeals in all cases authorised by any law or Regulation. It could also hear Letters Patent Appeal against the judgment of a single Judge of the High Court, dr a Division Bench of the High Court in which the views of the Judges were equally divided.

(2) Criminal jurisdiction—The High Court had criminal jurisdiction in all cases decided by the courts subordinate to it. It could also entertain revisions against the decisions of the lower courts and references from them.

Law to be Applied

The law which the High Court applied was same as applied by the Supreme Court That is English law. However, the High Court was allowed to use the principles of ‘justice, equity and good conscience’ on the appellate side. In criminal law, it followed the Indian Penal Code, one thousand eight hundred sixty. The procedural laws which the High Court followed were Civil and Criminal Procedure Codes.

Appeals from High Courts

An appeal to Privy Council lay from judgment of High Court in civil cases, when the amount involved was Rupees ten thousand or more, or, if the High Court certified that the case is fit one for appeal, criminal cases, from its original jurisdiction, or, if the High Court certified that the case is fit one for appeal. In addition, the Privy Council could entertain appeal by Special Leave,

Subsequent Changes

Gradually, more and more High Courts were established as the territorial limits of the British India extended- Allahabad (one thousand eight hundred seventy five), Patna (1916), Lahore (1919) and Nagpur(1936).

The Indian High Courts Act, one thousand nine hundred eleven, increased the number of judge 1 to 20. This was considered necessary keeping in view the volume of work before the High Courts and the fact that the High Courts were few In one thousand nine hundred fifteen, the Government of India Act prohibited the jurisdiction of High Courts relating to revenue matters.

The Government of India Act, one thousand nine hundred thirty five, besides establishing a Federal Court, contained provisions for the High Courts-

(1) Limitations on the number of judges was done away, the number of judges could be increased from time to time by the Governor-General of India.

(2) Quota system fixed by the High Courts Act, one thousand eight hundred sixty one, for the appointment of judges from different categories of persons was abolished.

(3) The age of retirement for the judges was fixed at 60.

(4) Indian advocates (possessing law degrees of Indian Universities) with 10 year’s practice were declared qualified to be the judge of High Court.

(5) High Courts were placed under the administrative control of provincial governments, but these governments could not make any rule or law affecting the position or service conditions of a High Court judge unless such law was given prior assent by the Governor-General.

Thus the Act provided security of tenure to High Court judges and also the discriminatory qualifications for barristers and advocates were dispensed with.

Evaluation of the Working of High Courts

The creation of one judicial institution replacing the dual system of courts was the fulfillment of a long cherished ambition in the interest of simplicity, harmony, convenience and efficiency for those who sought justice. The historical anomaly of over 90 years, thus, came to an end.

While in the area of criminal law, total uniformity was achieved with the application of I.P.C. and Cr. P.C. by all courts in British India, the substantive civil law continued to be differently applied by the High Courts. On the original civil side, English law was to be applied (as was done by the Supreme Court), and on the appellate side the court was to apply the same law and equity as the mofussil court lid as the court of first instance. It was only in due course of time, with the gradual progress in codification that the disparities in law on original and appellate sides of the High Court were removed.

High Courts (direct successor to Mayor’s Court) occupy a place of pride in administration of justice in the country. And since the law and practice governing e High Courts admits of little doubt, the Constitution of India, one thousand nine hundred fifty does not corporate detailed provisions relating to these.

A.1 Writ Jurisdiction of High Courts

A writ is a quick remedy against injustice, a device for protection of the rights of citizens against any encroachment by the governmental authority.

In Britain, writs were the King’s or Queen’s prerogative writs and were commands to the judicial tribunals or other bodies to do or not to do something. Since writs carried the authority of the Crown they were to be obeyed. Later, writs came to be enjoyed by the judges of the King’s Bench. By Regulating Act one thousand seven e hundred seventy three, the judges of the Supreme Court were given the same powers and privileges as were enjoyed by judges of King’s Bench. When in one thousand eight hundred sixty one, the Supreme Courts were abolished and the High Courts were established, the power to issue writs descended upon the judges of High Courts at Presidency towns. However, there was no mention in the High Courts Act, one thousand eight hundred sixty one about writ jurisdiction of the High Courts. It simply stated that the powers of the erstwhile Supreme Court would vest in the High Courts,

It may be noted that during the period one thousand seven hundred seventy four to one thousand seven hundred eighty one, the Supreme Court made frequent use of habeas corpus to protect Indians in the diwani area from unauthorized and illegal confinement at the hands of revenue officers.

‘In the matter of Streenauth Roy (1840), servants of a Rajah carried off from his house in Calcutta a Hindu inhabitant of Calcutta. The Supreme Court issued habeas corpus against Rajah, on the ground that the Hindu inhabitant of Calcutta was entitled to the protection of the court, and as an offender within the limits of Calcutta, Rajah was amenable to its jurisdiction.

It is, however, doubtful whether the court issued any other writ than habeas corpus.

There was always confusion about the power to issue writs and as to the jurisdiction of the courts to do so. The Supreme Court’s power to issue writs was confined to the territorial limits of the Presidency and beyond those limits the writ was issued only to a person who was otherwise subject to the jurisdiction of Supreme Court (that is Company’s subjects or British subjects). The Supreme Court also expounded a new doctrine of ‘constructive inhabitancy’ under which it assumed jurisdiction over persons who conducted business in Calcutta through their servants although they themselves resided outside the limits of the presidency town.

In one thousand eight hundred fifty eight, the country’s administration had passed on to the Crown (from the Company). The distinction between Indian subjects and the British subjects or the Crown’s subjects came to an end for all Indians automatically became British subjects. Regarding the High Court’s power to issue writs outside the local limits of the presidency town, some High Courts asserted that since the administration had come under Crown, so their power to issue writs was extended to the mofussil areas also.

Thus, the Presidency High Courts from the very beginning interpreted their power to issue writs outside the presidency town limits.

‘In re National Carbon Co.’ (1935), the Calcutta High Court held that it had the power in its ordinary original civil jurisdiction to issue the writ of prohibition against the Controller of Patents and Designs. The court reasoned that it had the power to issue the writ because it had inherited the powers vested in the judges of the erstwhile Supreme Court.

In the matter of Ameer Khan (1870), the Calcutta High Court held that it could issue habeas corpus in the mofussil to set free Indians detained illegally. Since the power of governance had been transferred from the Company to the Crown, the power to issue writs against the Company’s servants was now extended to the servants of the Crown throughout the province After the transfer of power, there was now no limit on the power to issue writs.

In re Govindan Nair (1922) the Madras High Court followed the Calcutta precedent and issued the writ of habeas corpus directing the government officials to release the man detained illegally.

In Mahabelshwarappa Verses Ram Chandra Row (1936), the Madras High Court issued certiorario quash the decision of the Election Commissioner in the district board elections.

But how inhibited the power of the Presidency High Courts to issue writs was, and how helpless these were in this regard is best illustrated by the cases discussed below,

In Ryots of Garabandho Verses Zamindar of Parlakimedi (1943) PC., the Privy Council held that even if the Board of Revenue had exceeded its powers in enhancing rent, the High Court had no jurisdiction to issue writ of certiorari. It said that the jurisdiction to issue writ did not depend upon the location of Board (the Board was situated within the Presidency town of Madras) but on the fact whether the subject-matter of dispute was such which fell within the jurisdiction of High Court. And since the High Court did not have the jurisdiction over revenue matter concerning parties and property situated in Ganjam district (where the cause of action arose), it could not issue writ only because the Board was situated within Madras (the Ganjam district was outside the local limits of Madras). If it were so, the jurisdiction of the High Court could be avoided by changing the location of the office of the Board. The Madras High Court had held that it had power to issue the writ, but it refused to do so because in its opinion the Revenue Board had not exceeded its authority.

The question whether the writ could be issued to British subjects or company’s servants outside the presidency limits on the ground that the Supreme Court had personal jurisdiction over such subjects or servants still remained open.

The question was settled by the Privy Council in Hamid Hasan Verses Banwari Lal Roy. In that case, the appellant, a Deputy magistrate was appointed administrator of Howrah Municipality after superseding the Chairman and Commissioners of that municipality. The respondents applied for a writ of quo warranto in the High Court of Calcutta, which issued the writ. Appellant filed an appeal in the Privy Council on the ground that the High Court did not have jurisdiction to issue a writ to person in Howrah because Howrah was beyond the territorial limits of Calcutta Presidency The Privy Council held that the High Courts had not inherited the personal jurisdiction of the Supreme Courts and therefore they could not issue writ against a person unless he fell within the ordinary original civil jurisdiction of those courts Howrah being outside the presidency limits of Calcutta was outside such jurisdiction of High Court and writ could not be issued simply because the appellant was a Company’s servant.

In the opinion of their Lordships, with the transfer of the governmental functions of the Crown the earlier distinction between the subjects of the Crown and the natives was blurred. The distinction could now be interpreted as between the British nationals and the Indian nationals although ail were now British subjects. The power of the High Court to issue writs would still extend to the mofussil in the case of the British nationals, but in case of the Indians, this power was limited to the local limits of the presidency towns. It may be noted that earlier in re Banwari

Lal Roy, the Calcutta High Court held that it had the power to issue the writ of quo warranto to the administrator of the Howrah Municipality. The court reasoned that with the transfer of power to the Crown, the status of the Indians was changed as now they all became the subjects of the Crown. Earlier there was a distinction between the subjects of the Crown, the servants of the Company and the natives. The Supreme Court was empowered to issue writs to the subjects of the Crown and the persons in the service of the Company throughout the provinces of Bengal, Bihar and Orissa or the Mofussil areas, but in the case of the natives, the power to issue the writs was restricted to the local limits of the town. This distinction was no more. As all Indians had become the subjects of the Crown, the power of the Court to issue writs was enlarged to cover the mofussil areas.

Legislative Provisions

Section 45 of the Specific Relief Act, 1877, provided that the writ of mandamus could be issued by High Courts of Presidency towns only within the local limits of their ordinary original civil jurisdiction to a public officer, corporation or an inferior court of justice.

Section 491 of Criminal Procedure Code, 1898, gave general powers to all High Courts to issue the writ of habeas corpus within the territorial limits of their original as well as appellate jurisdiction (it may be noted that other High Courts, then those at Presidency towns, not being the successor of any Supreme Court did not had any writ jurisdiction).

Thus, only the High Courts of Calcutta, Bombay and Madras had the power to issue all writs, viz. habeas corpus, mandamus, certiorari, prohibition and quo warranto. Thus, before 1950, various High Courts in India did not enjoy co-equal authority to issue writs.

Further the jurisdiction of High Courts to issue writs was limited to the territorial limits of their ordinary original civil jurisdiction and that too with respect to those matters which fell within that jurisdiction. The habeas corpus could be issued beyond Presidency towns also within their territorial jurisdiction.

Post-Constitution Position

In 1950, the Constitution of India gave equal powers to all the High Courts to issue the writs (Article 226). The power to issue writ is co-extensive with the territory of State over which the High Court has jurisdiction. By an amendment of Article 226, now the High Courts can issue writs to any governmental authority outside its territorial jurisdiction, provided the cause of action arises within their territorial jurisdiction.

Article 226 empowers each High Court to issue directions, orders or writs n the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari for the enforcement of fundamental rights, or for any other purpose The Constitution has vested in each High Court a very wide power to issue writs – even wider than the Courts in England. In addition to the five prerogative writs, High Court can Issue directions and orders or even frame additional and new writs to meet any unprecedented situation.

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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