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PR OJ E CT

ON

CH A R TE R AC T OF 1793

S U B M I T T E D T O -……………………

S U B M I T T E D B Y - A S H U T O S H R A V I

R O L L N O 324

2 N D S E M E S T E R

S U B M I T T E D O N -16 T H A P R I L 2010

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CHANAK YA NATI ONAL LA W UNI VE R SITY

T A B L E O F C O N T E N T S

I N T R O D U C T I O N

REFORMS MADE BY LORD CORNWALLIS

DEFECTS OF THE SCHEME OF 1793

CHANGES IN THE YEAR 1794

CHANGES DURUING 1795-1797

ADALAT SYSTEM IN BENARAS

C O N C L U S I O N

B I B L I O G R A P H Y

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ACKNOWLEDGEMENT

First of all we want to thank GOD for successfully completing this project. Then we want to

give my sincere thanks to our respected History faculty, Mr…………………………….. ,

who has guided us all the way in completing this project.

Then we would like to give thanks to our librarians who have helped us all the way in

searching through the source materials which help us lot in completing the project.

The list couldn‟t be completed without thanking all our friends who have encouraged me all

the way in completing the project

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RESEARCH METHODOLOGY

The researchers have used the doctrinal method in his research, that is, extensive use of literary

sources and materials were used to conduct the study. The researchers mainly used secondary

sources to provide substance to the research analysis. The researcher has also put down immense

effort in order to understand the terms and concepts related to the subject which enriched the

study to a great extent.

In some case the researcher shall be bound to extract materials directly from the literary work of

certain authors which the researcher intends to adequately cite and notify in due course of time. The

researcher also intends to conduct the study on a more micro level in order to make the study more

objective and precise in relation to Charter act of 1793.

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INTRODUCTION

The British rule in India at very first instance can not be said to be for the betterment of our

country but it is a fact that what the British did in order to consolidate their rule over India

and the steps that they took in order to get more profit, in a way, they turned out to be

beneficial for us. The present legal system of our country is more British than Indian. The

British needed a better administration of justice as, it would in turn, lead to a better trading

conditions that in furtherance would bring them more profit.

The period of 1772-1835 witnessed the first serious attempts at the establishment of an

effective and sound judicial system to protect the interests of all the sections. The reforms

brought about Lord Cornwallis with the principle of providing free justice to all were a

landmark in the Indian Legal history. These reforms basically streamlined the judicial system

and led to the establishment of proper judicial set up based on codes. After Lord Cornwallis,

Sir John Shore who succeeded him also had his contribution in the improvisation of the

judicial system. In subsequent sections we will be analysing the contribution of Sir John

Shore in the development of this legal system.

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REFORMS MADE BY LORD CORNWALLIS

The Governor-Generalship of Lord Cornwallis constitutes an important epoch in the history

of modern India. It may be rightly called the period of reforms. His real and important work

lay in the “status of the covenanted civil services, the collection of land revenues and the

organization of judicature”. He introduced a judicial system based on the principle of equality

and justice, set up a gradation of civil courts, reformed criminal law, proclaimed the

sovereignty of law and brought out a new code of regulation called Cornwallis Code of Civil

Procedure, thus completing the work begun under Warren Hastings.

Judicial Reforms by Lord Cornwallis: Lord Cornwallis came to India in 1786 with the

definite instructions from the Directors, who had enjoined economy and simplification, to

reunite the functions of a revenue collector, civil judge and magistrate in one and the same

person. In obedience to his instructions, without expressing his views Cornwallis brought

about changes in the existing system in 1787. Accordingly European collectors were

empowered to deal with the revenue disputes and were also made the judge of the Diwani

Adalats enjoying full magisterial powers. However hie was enjoined not to mix the revenue

affairs with the civil suits. He tried the revenue matters in the maal adalats (revenue courts).

Appeal against the decision first lay to the Board of Revenue at Calcutta and then to the

Governor General and Council. Though Cornwallis brought about these changes as a loyal

servant, he was not happy over the combination of the judicial and the revenue functions. The

civil courts that were presided over by the revenue officers had gradually been converted into

the institutions of oppression and were continuously inflicting wrongs on the inhabitants of

this country. Therefore Cornwallis after a consultation with the judges and officials for the

next three years came up with a reform in the year 1790.

The Judicial Plan, 1790: The preamble to the regulation explained that the changes were

necessitated by „the numerous robberies, murders and other enormities which have been daily

committed throughout the country‟. The district fauzdari adalats were swept away and in their

places four circuit courts, three for Bengal and one for Bihar, presided over the by two judges

chosen from the covenanted civil service were set up. The judges decided these cases with the

help of Qazis and Muftis. These courts toured every district twice a year to try persons charge

sheeted by the city magistrates. The sadr nizamat was transferred from Murshidabad to

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Calcutta where the Governor General and council who sat as judged continued to be assisted

by Qazis or Muftis. With this the criminal jurisdiction of the native Deputy Nawab was thus

finally abolished.

The Judicial Plan of 1793: The reforms brought about in this year were one of the most

important and landmark reforms made by Cornwallis as it was based on the postulate which

are regarded as essential and fundamental for the organization of the judicature in any

civilised country‟. The scheme was based on the principle of separation of powers and

accordingly the revenue and judicial function were given to different hands, though this

principle was afterwards departed from in the Governor-Generalship of Lord Hastings. The

collectors were divested of all judicial powers including the trial of revenue cases and were

left only with the power of collecting land revenue. The district civil court came to be

presided over by a class of new officers known as District Judge. An ascending hierarchy of

courts was set up. At the lowest level there were Munsiffs‟ courts presided over by the Indian

Commissioners who dealt with petty disputes involving amounting up to the value of Rs 50.

Next to this came the Court of Registrar presided over by the covenanted servant of the

company. He tried the cases up to the value of Rs 200. Appeals from both these courts lay to

the District or City Courts. Thereafter the District courts came, presided over by the British

judge and helped by the Indian assessors. Above them were the four provincial Courts of

Appeals, each under three European judges with the three European judges with the Indian

assessors at Patna, Dacca, Murshidabad and Calcutta. These judges were also the judges of

Circuit. It heard the cases referred to it by the government or the Sadr Diwani Adalat and

entertained the cases refused by the Mofussil Diwani Adalat. It dealt with the cases involving

a sum of Rs 1000. The highest court of appeal was Sadr Diwani Adalat consisting of the

Governor General and members of the council in Calcutta. It heard appeals involving over Rs

1000. An appeal against the decision of this court lay to the King-in-Council in disputes

exceeding 5000 pounds. The British subjects in the districts were made amenable to Diwani

Adalat. All those who lived away from Calcutta were refused licences until they agreed to

submit themselves to the jurisdiction of the Civil Courts. The government servants were

made answerable to the Civil Court for the acts done by them in their official capacity. Thus

Cornwallis proclaimed the principle of Sovereignty of Law in India. More so in case of the

criminal justice the Islamic Law was still in practice. The law of Evidence was modified by

the regulation IX of 1793 which provided that “the religious persuasions of witnesses shall

not be considered as a bar to the conviction or condemnation of a prisoner.” This regulation

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enabled the non-Muslims to give testimony against the Muslims in criminal cases. There was

another provision that put restriction on the right of the heir of a slain man to pardon the

murderer and substituted imprisonment for the mutilation. All these regulations were

embodied in the famous Cornwallis Code. The court fee which was to be paid at the time of

the institution of cases was at the rate of 2-5% was abolished so as to make justice cheap.

However, all these reforms that were unprecedented in the Indian Legal History, made by

Lord Cornwallis, were not free from defects. The defects and the further developments have

been dealt in the following sections.

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Defects of the scheme of 1793

Cornwallis left India immediately after establishing the new system of Judiciary in 1793.he

did not stay to see the scheme in actual operation. The responsibility to work the scheme fell

on Shore who succeeded Cornwallis. Shore started his career as the Governor –General with

a profound respect for the Cornwallis system, his initial reaction being that‟‟ the judicial

system proceeds well, I am satisfied that his Lordship„s plan was solid, wise and proved

beneficial to the authority to the country‟‟. In the meanwhile, the court of Directors also

accorded their “strong and flattering approbation” of the arrangement adopted in 1793.

Accumulation of Arrears in Adalat – No system however deliberately and elaborately

planned, can be perfect and free of defects. The same was true of the Cornwallis system. A

serious problem which emerged was that the civil courts were faced with a large volume of

litigation, and arrears of cases awaiting disposal mounted very high, so much so that the

entire course of justice was threatened. An idea of the magnitude of the problem could be had

from the following account: In Burdwan, in 1795 the number of pending suits in the district

adalat was nearly thirty thousands. Taking into the consideration the time spent by the Judge

on his duties as a magistrate, the adalat could not dispose of more than ten cases a day, and

on that basis, the period required by the adalat to clear off the pending business would be

about eight or nine years; but if the present rate of filling the suits continued, the number of

suits pending at the end of that period would be one hundred and sixty- five thousand. Thus, a

person could not hope to have his suit decided within the foreseeable future and this defeated

the very purposes of having a court. A similar phenomenon emerged throughout Bengal,

Bihar and Orissa. The purpose of Cornwallis – to give to the Indians a free and impartially

Justice – was thus being completely nullified due to the vast accumulation of arrears in the

adalats.

Under the scheme of 1793, the function of deciding revenue disputes including demands of

revenue had been entrusted to diwani adalats Out of this arose two difficulties. It led to the

increase of the work before the adalats and thus led to the accumulation of undecided cases

there. Further disposal of revenue demands by zamindars against their tenants was very much

delayed by the adalats because of loads of work on them. This put the Zamindars in a

quandary, while the Government had summery power to realise its revenue arrears from the

zamindars by selling away the defaulters „lands, the zamindars had no much summary

method available to them realise their dues from tenants : they had to move against their

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tenants through the extremely dilatory process of the adalats. From the point of view of the

zamindars, the situation was very inequitable; there was little prospect of their revenue

demands against their tenants of the Government‟s demands against them. The delays in

judicial process resulted in many zamindaries being sold. Many representatives were made to

the Government to the Government urging the need to mend matters. The wheels of justice

were clogged and this affected the government as well as the private individuals. The

collection of revenue was being adversely affected. It became indispensable to take steps to

set matters right. In this anxiety to ensure impartial justice, Cornwallis had prescribed an

elaborately procedure for the Diwani adalat to follow. He had taken the view that “ the forms

are equally essential to the due administration of justice .” and where the forms now

prescribed, differ from those heretofore in use the variation has been made with a view to

render them better adapted to the purposes for which they are established.

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FAULTY PROCEDURE

THE best way out of the difficult situation would have been to increase the number of

adalats. This would have increased disposal of cases and migrated accumulation of business

in the adalats. Though the scheme of 1793 was conceived with the beat of motives to provide

justice at low cost, yet the mean adopted were not adequate to achieve this end. A close look

at its structure will reveal these defects. In this three provinces of Bengal, Bihar and Orrisa,

only 26 diwani adalats were established. The jurisdiction of the registers and munsiffs was

very small; also they could not dispose of the matters finally, and their decree needed to be

lessened by munsiffs and registers court, further for every cases , howsoever small its value,

two appeals were provided which also increased the load of work on the adalats. Then there

were revenue cases also to deal with. Thus, while litigation was facilitated and recourse to

courts made easy, the large number of pending cases suits proved this point beyond doubt.

Shore‟s Government was not, however willing to adopt the expedient of increasing the

number of courts. It had a fervent faith in the sufficiency of the established courts. It took the

view that the scheme of 1793 provided for more courts than had been available previously

under the 1787 scheme .Under the 1793 Scheme , there was diwani adalats ,registers and

munsiffs, while in the 1787 scheme there was only one adalat. Even Judges could act like

collectors and so they do not have to pay full time on the administration of justice. On the

other hand the diwani judge under the 1793 scheme did not act as the collector and his sole

duty was to administer justice. Shore‟s government thus thought that the accumulation of

work in the adalat was merely a temporary phase and had resulted because the system had not

had enough time to operate fully, and as the courts settled down and exercised their powers

fully, accumulation of cases would abate. But the government‟s assumption was facile and

native and was based on a wrong premise. Before 1793, although one person held the office

of collector, judge and magistrate, yet he did not perform the judicial work regularly or

conscientiously. Suits of importance, or those which affected the government‟s interests,

probably were decided by the collector himself, but, by and large, the bulk of suits aiming the

individuals were settled by him or his officers in a summary manner. As the collectors

performed his work in a very perfunctory manner, not all litigation that might arise was

brought before him: people adjusted most of their disputes through the customary methods of

decision. After 1793, things changed, Access to the courts was now facilitated and justice

became easily available to all: court fees were abolished and so even the poor could now file

case and seek that the new Judges had no responsibility to collect revenue, but their work had

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not diminished increased their work. No conclusions, therefore about the adequacy of the

courts under the system of 1793 could be drawn by reference to the pre-existing system.

The state judicial work in the country was extremely unhappy and some solid steps were

called for to give relief to the civil courts. But, as the Government firmly held the view that

the phase of arrears was temporary and would soon pass out with the system settling down, it

was not in a mood yet to effect any major adjustments in the Cornwallis Scheme. It thought

of effecting some minor adjustments only, and the first step was taken in 1794 with a view to

diminish congestion of work in the Diwani adalat.

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CHANGES IN THE YEAR 1794

Regulation VIII of 1794 effected a minor modification in the mutual relationship between the

diwani adalat and the registers courts. Under the scheme of 1793 to free the diwani adalats

from petty suits and consequently, to enable them to decide quickly suits of greater value,

registers were authorised to decide suits up to RS. 200. But the efficacy of the arrangement

was diluted appreciably by the requirement that the decrees passed by the registers were not

to be valid unless countersigned by the Judge of the Diwani adalat denoting his approval

thereto. This had to be done in each case whether the parties were dissatisfied with the

register‟s decision or not. At the time of countersignature, the judge had to look into the

proceeding before the register, and this occupied as much of his time as if he was deciding

the matter himself in the first instance. The register could not in these circumstances provide

any effective relief to the judge. The procedure multiplied labour unnecessarily and too much

time was wasted on petty matters. To prevent the time of the diwani adalat from being

occupied by petty suits, and to expedite the administration of Justice, Regulation VIII made

the decree of the register final in all suits of money or personal property valuing up to RS.25.

The diwani adalat was to have a discretionary power to revise the decision made by the

register in such case; the adalat‟s decree was to be final. In all cases of real property, and

those for personal valuing over RS.25, register decision were made appealable to the

provincial courts of Appeal in place of the Diwani Adalat as hitherto. This provided some

relief to the Diwani adalat.

The Regulation gave some further relief to the diwani adalats by providing that they could

refer to the collectors, for their report, any accounts the adjustment of which was necessary

for the final determination of a case concerning rent or revenue. The collectors after going

through the accounts were to make a report to the adalat which could either confirm set aside

or alter the account. The adalat could not, however refer to the collector any accounts relating

to a suit in which he, or any of his officers, servants, or the Government was party. The step

was taken to save the time of the adalat spent on adjustments of long and intricate account in

revenue cases. The provision did not give much power to the collectors as the reports made

by them were not final and the adalats had the final say. Reference of accounts to the the

collectors as the reports made by was optional for the adalats. The provision as such was not

objectionable; on the other hand, it was convenient, A collector could look through the

accounts more quickly and effectively than could the adalat. However, to some extent, it did

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involve a departure from the policy underlying the scheme of 1793 which had sought to

separate completely the work of administration of justice from that of collecting revenue. But

this policy could hold the field for long. In course of time, more and more judicial power in

revenue matters was transferred to the collectors. The provision made in 1794, though not in

itself retransferring any judicial power to the collectors, did, however prove to be the

precursor of this future trend.

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CHANGES DURING 1795-1797

The minor adjustments made in 1794 didn‟t alleviate the situation. The accumulation of

arrears in the district diwani adalats continued unabated and parties continued to wait

indefinitely for justice. The government, could not afford to remain inactive for long in such

a situation, consequently, in 1795 some more adjustments were introduced in the scheme of

1793, it effected some further re-adjustments in the mutual relationship of the various civil

courts without increasing their number. As noted above, in 1794, an appeal have provided to

the provincial courts of appeal from registers in all case of real property and in cases for

extent, but came to interfere considerably with the more important work of the provincial

court of appeal which had now to spend their time over petty matters. The parties concerned

were put to much inconvenience as they had to travel long distance to reach these courts

down that appeals from the register were to go to the district diwani adalat and not to the

district adalat was brought to be sufficient for the purposes of justice. Any further appeal to

the provincial court of appeal in petty cases unduly interfered with their disposed of appeal in

cases of a higher value.

Hitherto, two appeals had been provided for from the decision of munsiffs who decided cases

up to Rs. 50 only. The first appeal lay to the district diwani adalat, and the second to the

provincial court of appeal t which all decision of the district diwani adalats were appealable.

The system was inconvenient and vexatious to the parties involved in petty cases, and

resulted in delay and expense to them. In 1795, therefore, the system which emerged in the

district to administer civil justice was as follows: munsiffs decided cases up to Rs. 50 and one

appeal to the diwani adalat was allowed: registers decided cases up to Rs. 200; one appeal to

the district diwani adalat was allowed but no further; district diwani adalat decided cases over

Rs. 200 and appeals from them lay to the provincial courts of appeals; in case of over Rs.

1000 a further appeal lay to the Sadar Diwani adalat. These arrangements were convenient

and economic to the parties involved in petty litigation and saved time of the courts of

appeals which could henceforth be spent on more important cases.

Regulation xxxvii was enacted in 1795 to better enable the Sadar Diwani adalat to monitor

their progress made by the district Diwani adalat and the provincial courts of appeal in

determining suits pending before them. The register to the Sadar Diwani adalat was to

prepare each month general report specifying the number of suits determined in the month by

the Diwani adalat , register and munsiffs in each district , and the number of appeals decided

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by each Provincial Court Of Appeal. After every six months , the register of the Sadar was to

compile a report on the number of cases pending before the various courts. For purpose of

comparison, the report was also to specify the number of cases shown pending in the

preceding half yearly report. The reason given by any court for any cases remaining

undecided were also to be submitted to the sadr Diwani adalat,

IMPOSITION OF COURT FEE

The above step failed to effect any appreciable reduction in the load of the work in district

diwani adalats. These measures were merely palliative but could not cure the basic malady

affecting the judicature. The areas of work continued to pile up as before and the adalats were

over burdened with work as ever; parties had to wait long for justice. In this situation

government could not remain complaisant for long. It had to devise some ameliorative steps

to expedite decision of suits and reduce congestion in adalats. Obviously, the best remedy to

meet the state of affairs would have been to increase the number of adalats, but the

government shirked from taking this step due primarily to consideration of cost. Instead of

this direct efficacious step, the government in its despair thought of discouraging litigation by

imposing fees. Lord Cornwallis in his desire to provide easy recourse to justice had abolished

court fees in 1793 and made justice wholly free from any monetary impositions. Even

appeals from decision of lower courts could be filed in higher courts without paying any

court

SCALE OF FEE:

According, regulation XXXVIII of 1795 imposed court fees and thus taxed administration of

justice. One anna in the rupee was to be paid by a plaintiff for filling suits before a munsiff;

the fees so received were to be appropriated by the munsiffs as compensation for his labour,

similarly, fees levied on suits filed before the registers were to be appropriated by them. For

filling suits before the district diwani adalats, fees were levied according to the following

sliding scale: from 50 to 200 rupees, half Anna in the rupee; from 1,000 to 50,000 rupees, at

a gradually decreasing rate of 3 percent to ½ percent; on sum over Rs. Provincial courts of

Appeal and in the Sadar Diwani Adalat. Certain other levies were also imposed, e.g. on

calling and summoning witness, filing exhibits or any other intermediate petition. The fees

were payable not only by those who would file their cases earlier and were awaiting disposal

of their cases at the hands of the courts. These persons were required to pay court fees before

a prescribed date. The result was that many pending cases required to pay court fees before a

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prescribed date. The result was that many pending cases were dismissed for try were not

informed of the new requirement and thus failed to pay fees before the prescribed date, or

because many could not afford to pay either because people living in the interior of the

country were not informed of the new requirement and thus failed to pay fees before the

prescribed date or because could not able to afford it. This did lighten load of work on the

Judiciary. The policy of imposing court fees was taken a step further by regulation VI of

1797 which levied still heavier imposition, on suits, witness, exhibits, and appeals. The

purpose of the levy was still to further discourage the litigation in future.

RESULT

The expedient adopted by the government to provide relief to the over-worked courts was in

effect worse than the disease. Taxing litigation and thus making justice expensive and less

easily accessible led to a wholesale denial of justice to large section of people. It amounted to

frightening away suitors from the doors of the courts. Many people with genuine cases could

cases could not avail of the courts owing to their inability to defray expenses of a judicial

process and many lost their cases because of ignorance of the new levy. The propriety of the

step was questionable and dubious and many government officials criticised the step taken.

Taxing litigation was in reality being made use of as a source of income by the Government.

In a typical criticism of the system, the judge of Midnapur, he pointed that many person gave

up their cases in despair on finding the expenses on continuing them to be beyond their

means. It was not so much the original fee on the institution of a suit but the subsequent

charges on exhibits and witness that was intolerable and he continued. He was of the view

that not more than five percent of the suits filed could be fairly regarded litigation, and those

were probably instituted by men well able to hear the expense. Similarly, the Murshidabad

court of appeal commenting adversely on that measure stated that the levy of fees didn‟t

check litigiousness, but encouraged it, for “certainty of expenses added to the uncertainty of

the result, might deter parties from defending even just right.

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APPEALS TO THE SADAR DIWANI ADALATS RESTRICTED

Under the scheme of 1793, appeals in cases of over Rs 1000 could ultimately be taken to the

Sadar Diwani adalat. Thus a large number of cases came before the Sadar Adalat. The

Governor General and the members of the council who constituted this adalat had

multifarious other duties to discharge and could not devote as much time to the Adalat‟s as

the quantum of work demanded. Further the adalat was occupied with small matters and

could not bestow much attention to the suits of greater magnitude. Shore‟s government felt

that some restriction is needed to be imposed on appeals to the Sadar Adalat, and took the

first step in this direction through Regulation XII of 1797 which made the decrees of the

provincial courts of appeal final in the case of money or personal property up to Rs 5000.

Appeals in the cases involving real property could still be taken to the Sadar Adalat if the

value of the subject matter happened to be over Rs 1000.

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ADALAT SYSTEM IN BENARAS

In 1795 the government decided, with the concurrence of the Raja of Benaras, to introduce

into the Benaras province, as far as the local circumstances permitted, the same system of

administering justice as had been in the provinces of Bengal, Bihar and Orrisa in 1793. This

was achieved through a series of regulations enacted on 27th

March, 1795. The Benaras city

was formed into a district; the rest of Benaras province was divided into three districts of

Mirzapur, Gazipur and Jaunpur. For the trial civil suits, a diwani adalat was established in

each district with a company‟s covenanted servant as its judge and having the same

jurisdiction, powers and authority as its counterpart in Bengal. Munsiffs and registers were

also appointed in each district. To hear appeals from all four district diwani adalats, a

Provincial Court of appeal was established at Benaras having same powers and jurisdiction as

the similar court in Bengal. The provincial court of Appeal at Benaras was also to act as the

Court of Circuit for the trial of criminal offences. Appeals from this court went to the Sadar

Nizamat Adalat at Calcutta. In this judicial system, law showed some indulgence to the

Brahmins in the administration of criminal justice. No Brahmin was to be punished with

death; instead he was to be sentenced to transportation. In cases where the plaintiff and the

defendant belonged to different religious persuasions, the decision was to be given according

to the law of the defendant‟s religion. However, if the defendant happened to be a European

or a non-Hindu or non-Muslim, the law of the plaintiff was to prevail.

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CONCLUSION

Governor-General Shore was called upon to effect changes in the system introduced by Lord

Cornwallis with a view to reduce the congestion of works in the adalats and expedite disposal

of cases. His reforms mainly followed two courses: restricting the rights of appeal to higher

courts from the decisions of the lower court and imposing court fees. The idea of restricting

appeals was basically sound and improvement over the system introduced by Cornwallis

which provided for too many appeals making administration of justice dilatory and

cumbersome process. The imposition of court fee on the other hand was a retrograde step. It

was imposed, the reason being to decrease the number litigations. But in a contrary effect it

shut the doors of justice for the poor and here Sir John Shore knocked out a vital principle of

the Cornwallis‟s system that was providing free justice to all.

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BIBLIOGRAPHY

BOOKS REFERRED

1. OUTLINES OF INDIAN LEGAL AND CONSTITUTIONAL HISTORY by

PROF. M.P JAIN

2. LANDMARKS IN THE CONSTITUTIONAL HISTORY OF INDIA by

B.M GANDHI

3. HISTORY OF INDIA by H.V SREENIVASA MURTHY, V.S ELIZABETH