REFORMS OF CORNWALLIS
The Governor -Generalship of Lord Cornwallis (1786-1793) constitutes a very remarkable and a highly creative period in Indian legal history. He thoroughly reorganised the judicial system. He introduced for the first time the principle of administration according to law. He made very important and far-reaching reforms in the judicial administration, some of the basic principles of which exist even upto now. The reforms were made by Cornwallis in three stages in 1787, 1790 and 1793.
Judicial Plan of 1787
On the instructions from Court of Directors, Lord Cornwallis introduced his first plan in 1787 to combine revenue and the judicial functions in a single authority called the Collector. Thus, the Collector collected the revenue as well as decided the revenue disputes. This was done to avoid the conflict of jurisdiction and to save expenses. The revenue court was called as ‘Mal Adalat’. The appeal against the decisions of the Collector went to the Board of Revenue at Calcutta and a second appeal to the Governor-General and Council. Thus there was provision for two appeals in revenue cases.
For deciding civil disputes, Diwani Adalat with Collector as the sole judge was established. The Collector was also given some magisterial powers. As Magistrate he had the powers to arrest the criminals, hear evidence against them and commit the case to the criminal court to be tried by it. In petty matters, he was given power to inflict 15 days imprisonment.
The plan was a retrograde step in the administration of justice. Whatever goods had been done by Warren Hastings by separate revenue and judicial functions was undone by this plan. In Civil cases, appeal from Mofussil Diwani could be preferred in the Sardar Diwani Adlent if the subject matter of the suit exceeded Rupees one thousand and in cases more than £ 5000 a further appeal by to the king in council. The Sadar Adalat consist of the Governor General and all the members of his council assisted by the Chief Kazi, Chief Mufti and two Moulvis for Muslim law and Hindu Pandit for Hindus law.
Judicial Plan of 1790
The administration of criminal justice was suffering from various defects before the reforms of 1790,
(1) The criminal administration of justice was completely left in the hands of Muslim officers. With no proper control over them, they misused their powers e.g. accepted bribes,
(2) The Moffussil Faujdari Adalats had unlimited powers, and with absence of proper control these courts became autocratic,
(3) There was no relation between the severity of the crime and the punishment provided for that. Full freedom was given to the courts to given punishment as they liked. Thus, even in the crime of murder, the criminal went unpunished,
(4) In many cases the protection was afforded to the criminal by Zamindars and by their influence over the Muslim judges, they could get the criminals escape from the clutches of the judiciary. In this way, crimes were encouraged,
(5) The Nawab who had the power to control the criminal justice administration, was very careless.
Lord Cornwallis circulated a questionnaire to all the magistrates to ascertain their views and the existing facts about the criminal justice system. The replies given by the magistrates painted a very bad picture of the then existing system. The 1790 reforms eliminated the name of Nawab from the criminal justice administration. The administration was entrusted to Company’s servants who were to be assisted by Muslim law officers.
Three types of Courts were created in the Mofiissil area,
(1) Court of District Magistrate continued as before that is 1787 Plan,
(2) Circuit Courts—It was a moving court which visited every district twice a year to try the persons charge-sheeted by the Magistrate. It consisted of two Company’s servants assisted by kazi and mufti. The salaries of the court officers were increased so as to reduce their lure for bribes,
(3) Sadar Nizamat Adalat-It was transferred to Calcutta where the Governor-General and Council sat as its judges, assited by Muslim law officers. The system created in 1790 worked very well, the only defect revealed in the system was that the Courts of Circuit were called upon to handle huge amount of work. Therefore, in 1792 Cornwallis empowered Magistrates to give punishment in cases punishable up to one month’s imprisonment. This reduced the pressure on Circuit Courts. Lord Cornwallis also made some humanitarian reforms viz provisions for allowance to the prosecutors and witnesses who came to the law courts, abolition of the provision for attachment of property, provisions for the rehabilitation of criminals after their release from the jail.
Judicial Plan of 1793
The scheme of 1787 had many defects. The Collector functioned practically without any control from the above. He very soon became an autocrat and neglected his judicial functions. Actually, his main function was the collection of the land revenue on which his future promotions and his remunerations depended. The disputes in the Mal Adalat generally related to the collection of land revenue which mean that the Collector was a judge in his own cause. From a purely administrative point of view, the scheme was convenient, simple and economic, but it was hardly conducive to secure people’s liberty, protect property and promote their general welfare.
The 1793 scheme forms the high water mark in the Indian legal history, as it was based on certain postulates which are regarded as essential and fundamental for the organization of the judicature in any civilized country. The scheme provided for a system of administration of justice which may secure and protect people’s liberty and promote their general welfare.
The basic or general features of the scheme are as follows,-
(1) Separation of executive and judiciary, Henceforth, the Collector was to be responsible only for collection of revenue. The power of administering civil justice was given to the diwani adalats.
(2) Control of judiciary over executive, The Collectors and all executive officials were made amenable to the diwani adalats for their official acts. They were to be personally liable, and could be required to pay damages to the injured party, for violations of the Regulations. Thus, for the first time a privilege was given to the people to get remedy against the Company’s officers who committed any wrong against them.
(3) Governmental liability, Any person could file a suit for damages in the diwani adalat against the Government in the same way as he could file suit against a private person.
(4) British subjects and diwani adalats, The position up to now was that native could obtain redress against the British subjects only in the Supreme Court at Calcutta. It was very difficult for natives to reach the Supreme Court because of their poverty and long distance. To avoid this, the diwani adalat was given a power not to allow any British subject to live beyond 10 miles from Calcutta unless he executed a bond that he shall be liable to the jurisdiction of the court up to value of Rupees five hundred.
Reorganization of courts-The courts were fully reorganized by the 1793 Scheme
(1) Civil Judiciary—A complete “hierarchy of courts” was established to deal with civil matters.
(a) Sadar diwani adalats—The highest court in the judicial hierarchy consisted of Governor- General and Council. It heard appeals against the decision of Provincial Courts of Appeal on matters exceeding Rupees 1000. These courts now had the supervision and control over the lower judiciary. The court could receive any original suit to be referred to it if the Provincial Court or the Diwani Adalat had neglected to entertain the matter. It also heard and decided charges of corruption and incompetency against the judges of lower courts.
(b) Provincial courts of appeals—Till now the only appellate court was the Sadar Diwani Adalat, functioning in Calcutta. The provincial courts of appeals were established in four divisions which had the jurisdiction to try civil suits referred to it by the Government or the Sadar. Diwani Adalat, to hear appeals against the decisions of diwani adalat etc. The courts consisted of three Company’s servants as judges.
(c) Diwani Adalat—A civil servant of the Company was appointed as the judge of diwani adalat (previously the Collector was the judge) who had no work except deciding the civil and revenue disputes.
(d) Registrar’s Courts—The Diwani Adalat could refer the suits upto Rupees two thousand to the court of registrar which was held by the servant of Company.
(e) Munsif’s Courts— Zamindars, Tehsildars, etc appointed as Munsifs to try suits upto the value of Rupees fifty.
(f) Ameen’s Courts—It had the same composition and powers as the court of munsif, however, it could not entertain a case directly unless referred to it by the diwani adalat.
(2) Criminal Judiciary— Most of reforms had been introduced under the Scheme of 1790. Under 1793 plan, only two important changes were madein the place of Collector, the judge of Diwani Adalat was appointed as the Magistrate, and the work of the Circuit Court was transferred to the provincial court of appeal.
(1) Abolition of court fee—The court fee was abolished so that the people could easily reach to the court for securing justice.
(2) Legal profession—The Sadar Diwani Adalat was authorized to appoint pleaders to the persons having some legal knowledge.
(3) Cornwallis code—The Regulations made by Governor- General and Council had to have a preamble and title by which the nature and purpose of the Regulation could easily be ascertained. The Regulations were to be produced in the form of sections and clauses to be numbered serially. The Regulations introduced by the Cornwallis were collected together and later on come to be called as Cornwallis Code. A step was thus taken towards making law certain, definite and easily accessible to all.
(4) Native law officers—The position of native law officers improved by requiring that they shall be appointed by the Governor-General and Council from amongst the people of good character and having the knowledge of law. They could not be dismissed except for incapacity or misconduct in their public duty.
Critical appraisal of 1793 Plan
Lord Cornwallis perfected the process started by Warren Hastings. The 1793 Plan was very logical, comprehensive and well planned. The new system was based on the principle of checks and balances, the executive officers were amenable to courts and were personaly liable for their official acts, on the judicial side an elaborate system of supervision and appeals was introduced. The courts worked with more efficiency, independence and judicial outlook. For the first time the ‘rule of law’ was estbalished in the Mofussil area.
However, the new system was not completely free from defects,
(1) The provisions for two-three appeals made the judicial machinery complicated and slow moving. Thus, large number of cases remained pending in the courts for long period.
(2) The Indians were totally excluded from the judiciary except at very low level of munsif. Cornwallis started with a wrong premise that the Indians from their character and bearing were unworthy of holding any position of responsibility. This distrust shown towards the Indians generated the dissatisfaction among the native people as well as made the system less efficient and to some extent superficial as the English servants did not know and understand the customs, usages, etc. of the people,
(3) Cornwallis did everything on procedural side but he could not reform the substantive part of law mainly the criminal law which was based on Muslim law and had many defects.