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PART I

JUDICIAL SYSTEMS AND

THEORIES OF JUSTICE

11

Chapter 1

ORIGIN AND DEVELOPMENT OF JUDICIAL SYSTEM IN INDIA

1.1 Ancient Indian Judicial System

The roots of the present day human institutions lie deeply buried in the

past. The same is true in a country’s law and legal institutions. The legal system

of a country at a given time is not the creation of one man or in one day; it

represents the cumulative fruit of the endeavour, experience, thoughtful planning

and patient labour of innumerable human beings through generations. To

comprehend, understand and appreciate the present legal system adequately, it is

necessary, therefore, to acquire background knowledge of the course of its growth

and development.1

India has the oldest judiciary in the world. No other judicial system in the

world has more ancient or exalted pedigree. The spiritual value of a free judiciary

for a civilized human order is symbolized in the imperative Fiat Justicia and

inscribed in ancient Indian Neeti Shastras.2 But, a distorted version has been given

by some writers which undermines the quality of Indian jurisprudence and legal

system of ancient India. An Anglo-Indian jurist made the following remark about

what he called “the oriental habits of life” of the Indians before the British turned

up in India: “It (British rule in India) is a record of experiments made by foreign

rulers to govern alien races in a strange land, to adapt European institutions to

Oriental habits of life, and to make definite laws supreme amongst peoples who

1 Jain M.P., Outlines of Indian Legal and Constitutional History, LexisNexis Butterworths Wadhwa, Nagpur, Sixth Edition, Reprint, 2012, p.1. 2 Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328

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had always associated government with arbitrary and uncontrolled authority.”3

Alan Gledhill, a retired member of the Indian Civil Service, wrote that when the

British seized power in India there was a dearth of legal principles.4

The aforesaid statements were not true and they might be made due to

sheer ignorance, or imperialist self-interest, or contempt for Indian culture and

civilization which was a part of the imperialist outlook which dominated British

Jurists, historians, and thinkers in the heyday of imperialism. But the effect of this

misrepresentation, which has few parallels in history, was to create a false picture

of the Indian judicial system both in India and outside.5

We would have a distorted picture of the nature of modern law if we were

to take the stand that it began only today, or the day before yesterday. The truth is

that the traditions of the past have made our modern legal system what it is, and

still live on in it. Without a proper historical background, it may be difficult to

appreciate as to why a particular feature of the system is as it is. The historical

perspective throws light on the anomalies that exist here and there in the system.6

1.1.1 Ancient Indian concept of justice

Ancient Indian concept of justice is based on 'Dharma'. 'Dharma' is a

Sanskrit expression of the widest import. There is no corresponding word in any

other language. It has a wide variety of meanings. A few of them would enable us

to understand the range of that expression. For instance, the word 'Dharma' is used

to mean Justice (Nyaya), what is right in a given circumstance, moral values of

life, pious or righteous conduct, being helpful to living beings, giving charity or

3 Herbert Cowell, History of the Constitution of the Courts and Legislative Authorities in India, Thacker, Spink & Co.Ltd, 1936, p.3. 4 Alan Gledhill, The Republic of India: The Development of Its laws and Constitution, Stevens & Sons, 1964, p.211. 5 Justice S.S. Dhavan, The Indian Judicial System, A Historical Survey, http://www.allahabadhighcourt.in, p.1 6 supra note 1, p.2.

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alms, natural qualities or characteristics or properties of living beings and things,

duty, law and usage or custom having force of law.7

Mahabharata contains a discussion on this topic. On being asked by

Yudhishtira to explain the meaning and scope of Dharma, Bhishma replied thus:

“It is most difficult to define Dharma. Dharma has been explained to be that

which helps the upliftment of living beings. Therefore, that which ensures the

welfare of living beings is surely Dharma. The learned rishis have declared that

which sustains is Dharma.” 8

The concept of 'Dharma' has been with us for time immemorial. The word

is derived from the root 'Dh.r' - which denotes: ‘upholding', 'supporting',

'nourishing' and 'sustaining'. It is because of this that in Karna Parva of the

Mahabharata, Verse 58 in Chapter 69 says:

“Dharma is for the stability of the society, the maintenance of social order and the

general well-being and progress of humankind. Whatever conduces to the

fulfilment of these objects is Dharma; that is definite.”9

Madhavacharya, the Minister to Hakka and Bukka, founder kings of

Vijayanagar Empire, in his commentary on Parashara Smriti, has briefly and

precisely explained the meaning of Dharma as follows :

“Abhyudaya Nihshraise Sadhantwen Dharayate - Iti Dharmah, Sa Cha

Lakshan-Pramabhyam Chodanasutrairvyavasthapitah.”

Dharma is that which sustains and ensures progress and welfare of all in this

world and eternal bliss in the other world. The Dharma is promulgated in the form

of commands.10

The word 'Dharma' denotes upholding, supporting, nourishing that which

upholds, nourishes or supports the stability of the society, maintaining social order

7 M.Rama Jois, Legal and Constitutional History of India-Ancient Leagal, Judicial and Constitutional System, Universal Law Publishing Co. ,New Delhi, Reprint 2010, p.3 8 Mahabharata Shanthi parva - 109-9-11 9 A.S.Narayana Deekshitulu v. State of A. P. and others, AIR 1996 SC 1765 10 ibid

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and general well-being and progress of man-kind; whatever conduces to the

fulfilment of these objects is Dharma.11

1.1.2 Supremacy of Dharma and Judiciary

The essential aspect of our ancient thought concerning law was the clear

recognition of the supremacy of Dharma and the clear articulation of the status of

'Dharma' which is somewhat akin to the modern concept of the rule of law, i.e. of

all being sustained and regulated by it.12

There is nothing higher than Dharma. Even a very weak man hopes to

prevail over a very strong man on the strength of Dharma, just as (he prevails over

a wrongdoer) with the help of the King. So, what is called Dharma is really truth.

Therefore people say about a man who declares the truth that he did declare

Dharma and about one who declares Dharma they say he speaks the truth.13

A case decided by Ramasastry, the Chief Justice to the Peshwas, in

Maharastra, in 1774 A.D., indicates the assertion of the sanction of Dharma and

the supremacy of the judiciary. After the death of Peshwa Madhava Rao on

18-11-1772, his only surviving younger brother Narayana Rao, who was just

seventeen years of age, succeeded to the position of the Peshwa and became the

ruler. His uncle Raghunatha Rao, being ambitious of power, hatched a conspiracy

to overthrow Narayana Rao. As a result of this conspiracy, young Narayana Rao

was murdered on 30-8-1774, and Reghunath Rao assumed power. Ramasastry,

the Chief Justice, probed into the murder of Narayana Rao. He held the accused

Reghunatha Rao and 49 others including a woman guilty of murder and convicted

them for the offence. This decision was communicated to the ruler, Peshwa

Raghunatha Rao, as according to Rajadharma, the power to decide the quantum of

penalty and to impose it on the person found guilty of an offence by a judge vested

in the king. The Peshwa took no action, he himself being the first accused in the

case. The Chief Justice insisted on his decision being given effect to. As a

11 ibid 12 ibid 13 Aruna Roy v. Union of India, AIR 2002 SC 3176

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consequence of this insistence, Raghunath Rao dismissed Ramasastry from his

post, who then quietly retired to his village. But Dharma asserted its supremacy

through the people. They refused to recognise Raghunatha Rao as the Peshwa as

he had been found guilty of the murder of young Narayana Rao who was their

lawful ruler. A council of twelve persons, called Barabhai, was formed which

took over the administration after deposing Raghunatha Rao.14 This case is an ever

inspiring one: a glowing tribute to the ‘supremacy of Dharma,’ the independence

of the judiciary and the exemplary conduct exhibited by a judge.15

1.1.3 Concept of Sin

Though a man may not disclose to others what he had thought or done, or

even when it is known to others, when asked, he might deny that he had done any

such sinful act, he cannot deceive his own conscience. It tells him that he has

committed a sinful act.16 In the case of violation of the provisions of criminal laws,

the procedure for enforcement of the law was that any member of the public could

bring the violation to the notice of the king and the king was under a duty to

apprehend and punish the offender. The smritis provided for the appointment of

an officer by the king to apprehend violators of criminal law and to punish them.

An offence committed in violation of the provisions of criminal laws was included

in the term pataka.17

A person who is appointed by the king to detect commission of offences

and provide such information to him is called a Suchaka. Unlike civil disputes, in

respect of offences committed by any individual, the king was to act on mere

information. Verse 34 of Katyayana Smriti brings about the clear distinction

which was prevailing in the matter of initiating criminal action against an offender

as distinct from initiation of civil action by the aggrieved party.18

14 Justice M.Rama Jois, Legal and Constitutional History of India, Universal Law Publishing Company, Delhi,2009,p. 497 & 498. 15 ibid,,p. 498. 16 ibid, p.318. 17 ibid, p.318. 18 ibid, p.320.

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The first verse of Katyayana Smriti brings forth two important points

bearing on the distinction between criminal law and civil law.

(1) The information or complaint about the offence committed by any individual

could be made by any citizen and not necessarily by the person injured or his

relatives.

(2) The detection of any offence and lodging of first information by a third

party about the commission of such an offence was considered as an act for which

he was entitled to remuneration at the hands of the king (State).19

1.1.4 Evolution of Ancient Indian Judicial System

The ancient Aryan rulers of India were confronted by political, economic,

and social problems in many ways similar to those with which modern British

statesmen and social reformers are struggling, and their solutions of them,

according to all the evidence of history, were much more satisfactory to the people

at large than any, which modern Europe has found. The freedom and general

happiness attained by the people of Great Britain with the help of Parliamentary

institutions and the richest revenues of the world can hardly be compared with that

which Indians within the Aryan pale enjoyed both before and after the fifth

century A.D., the time which was regarded as the Dark Age20.

The development which India had from 300 A.D. to 1192 A.D could not

have been achieved without a very sound justice dispensing system. So, the

criticism by some historians and foreign jurists that there was no rule of law in

ancient India was not at all reasonable or objective. On the other hand, the works

of E.B. Havell, A.L. Basham and John W. Spellman who do not share the

prejudicial attitude of their predecessors reveal that there was a very strong

judicial set up in ancient India. The judicial system was founded on rule of law

and the principle that everyone was subject to law was observed in letter and

spirit. The King himself was subject to the law and the kingship itself was subject

19 ibid, p.320. 20 E.B.Havell, The History of Aryan Rule in India,George G.Harrap and Co,London,1918, p.xi.

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to the fulfilment of his duties. The breach of the duties on the part of the King

would result in the forfeiture of kingship.

The ancient Indian judiciary consisted of a hierarchy of judges with the

Court of the Chief Justice (Praadvivaka) at the top, each higher Court being

invested with the power to review the decision of the Courts below. The disputes

were decided essentially in accordance with the same principles of natural justice

which govern the judicial process in the modern State today. The rules of

procedure and evidence were similar to those being followed today. The

supernatural modes of proof like the ordeal were discouraged. In criminal trials,

the accused could not be punished unless his guilt was proved according to law. In

civil cases the trial consisted of four stages like any modern trial – plaint, reply,

hearing and decree. The doctrines such as res judicata (prang nyaya) were familiar

to Indian jurisprudence. All trials, civil or criminal, were heard by a bench of

several judges and rarely by a judge sitting singly. The decrees of all courts

except, that of the King were subject to appeal or review according to fixed

principles. The fundamental duty of the Court was to do justice “without favour or

fear”. 21

1.1.5 Judiciary in the Mourya Empire

Koutilya was the Prime Minister of the Mourya Empire (322 – 298 BC).

He was known as Chanakya who was the author of Arthashasthra. As per

Arthashasthra, the kingdom was divided into administrative units containing

villages. The smallest unit, known as sangrahana, was a fortress established in

the centre of ten villages. The next upper unit was kharvatika which was the

centre of 200 villages. Next to kharvatika was dronamukha which was the centre

of 400 villages. The upper most one was sthaniya which was established in the

centre of 800 villages. Courts were established in each sangrahana. Each

consisted of 3 jurists (dharma sastha) and 3 ministers (amathya).

21 supra note 6, p.1

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Arthasasthra deals with administration of justice in detail. Judges are

called dharmasasthas. There is reference to the pradeshtris as officers responsible

for the suppression of criminals. Punishments for crimes range from fines to

mutilation of limbs and death.22 It is true that there was discrimination in the

punishment to different class of people. But this was not because of any defect in

the administration of justice by the judiciary; but because of the law itself. The

nature of the punishment depended on the nature, gravity and circumstances of the

crime and also on the varna of the offender and plaintiff. For instance, if a

Kshatriya had sexual relations with an unguarded Brahmana woman, he has to pay

the highest fine. If a Vaishya committed this offence, his entire property was to be

confiscated. If a Shudra did so, Kautilya( 4.13.32) states that he should be burnt in

a fire of straw.23 So the discrimination in the punishment to different class of

people was on account of the law itself and was not attributable to the judiciary.

1.1.6 Hierarchy of the Courts

As per Brihaspathi Smrithi, the hierarchy of the courts began with family

courts and ended with the King. The lowest was the family arbitrator, the next

higher court was that of the judge and the next was that of the Chief Justice who

was called Praadivivaka or adhyaksha. The top most one was the King's court.

The jurisdiction of each court was determined by the seriousness of the dispute.

Minor dispute was determined by the lowest court and disputes of grave nature

would go to the King. The decision of each higher court will supersede that of the

court below.

A strict code of conduct was prescribed for the King. He was required to

decide cases by open trial in the court room. He was required to take the oath of

impartiality and decide cases without bias. He should act under the guidance of

his Chief Justice, Judges, Ministers and Brahmana members of his council. The

judges and councillors guiding the King were required to be independent and

22 Upinder Singh, A History of Ancient aand Early Medieval India: From Stone Age to the 12th Centuary, Pearson Longman, Delhi, 2009, p.347 23 ibid, p.347

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fearless who shall prevent the King from committing any error or injustice. The

judge must give his opinion, which he considers to be in accordance with law. He

is not to please the King by deviating from equity and justice. By the time the

King had become busier by attending numerous duties, he had less time to decide

disputes. So, he was compelled to delegate his judicial functions to professional

judges.

In course of time, a judicial hierarchy was created which relieved the king

of much of the judicial work, but leaving untouched his powers as the highest

court of appeal. Under the Maurya Empire a regular judicial service existed as

described above. 24

1.1.7 Integrity

Judges appointed by the King should be wise, well versed in procedure, of

good character, temperament, soft in speech, impartial, truthful, active, learned in

law and free from anger, greed or desire for personal gain. The foremost quality

of a judge was integrity which included impartiality and absence of bias.

According to Brishaspati, a judge should decide cases without any consideration

of personal gain or any kind of personal bias; and his decision should be in

accordance with the procedure prescribed by the texts. A judge who performs his

judicial duties in this manner achieves the same spiritual merit as a person

performing a Yajna.25

Stringent measures were taken for ensuring the impartiality of judges and

the transparency of the judicial process. The trials were held in open court and

private hearings i.e., the parties talking to the judges privately during the pendency

of the case, was prohibited. The standards set for the judges and magistrates were

very high. They were to be very learned, religious, devoid of anger and as

impartial as humanly possible.26 Another important aspect was that the decisions

were taken by Benches and not by singe judge.

24 supra note 6, p.3 25 ibid 26 Arthur Llewellyn Basham, The wonder that was India: a survey of the culture of the Indian sub-continent before the coming of the Muslims, Vol.2, Sidgwick and Jackson, 1954 p.116

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Even if the Judge is the King, he must sit with his councillors, when

deciding cases, and judges must sit in benches of uneven numbers. Shukra-nitisara

enjoined that persons entrusted with judicial duties should be learned in the Vedas,

wise in worldly experience and should function in groups of three, five, or seven.27

The composition of the courts varied with time and place, but the evidence

indicates that ancient India preferred a bench of Magistrates to a single judge.28

Arthasasthra advises that a court with a bench of three magistrates be set up for

every ten villages, with higher courts in districts and provinces.29 The present

Indian court system, created by the British, does not follow this mode of bench

trial which was intended for minimizing errors in the decision making.

1.1.8 Features of the System

Another notable feature of the ancient judicial system in India was the

involvement of juries who were known as Sabhasada or councillors who acted as

assessors or advisors of the King. They were equivalent to the modern jury except

in one important aspect which was the qualification. The modern jury need not

have any legal knowledge and even a layman can be a jury. But the Sabhasada or

the councillors, who sat with the King were to be learned in law. The councillors

should be well versed in the literature of law, truthful and impartial.

The councillors should be capable of expressing their opinion without fear,

even to the point of disagreeing with the Sovereign and warning him that his own

opinion was contrary to law and equity. According to Katyayana Smriti, the

assessors should not keep mum when they perceive that the Sovereign inclined to

decide a dispute in violation of the law; if they keep silent they will go to hell

along with the King. The same injunction is repeated in an identical verse in

Shukra-nitisara. The Sovereign-or the presiding judge in his absence-was not

expected to overrule the verdict of the jurors; on the contrary he was to pass a

27 supra note 6, p.3. 28 supra note 26, p.116 29 ibid

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decree (Jaya-patra) in accordance with their advice. As per Shukra-nitisara the

King, after observing that the assessors have given their verdict, should award the

successful party a decree (Jaya-patra). Their status may be compared to the

Judicial Committee of the Privy Council which “humbly advise” their Sovereign,

but their advice is binding. It may also be compared to the peoples’ assessors

under the Soviet judicial system who sit with the professional judge in the

Peoples’ Court but are equal in status to him and can overrule him.30

1.1.9 Mode of proof

In ancient societies proof of facts by super natural devices such as trial by

ordeal was in existence. In England it prevailed till the close of middle ages. Trial

by ordeal included trial by fire, trial by water, trial by hot water, trial by host, trial

by ordeal bean, trial by snake etc. But, ancient judicial system in India prohibited

resorting to super natural devices if oral or documentary evidence were available.

The judicial system in ancient India stood at a higher pedestal in matters of the

effort for discovery of the truth.

In disputes, the Court has to ascertain what is true and what is false from

the witnesses. All available evidence indicates that in ancient India, being a false

witness was viewed with great abhorrence. All foreign travellers from

Megasthenes in the 3rd century B. C. to Huan Tsiang in the 7th century A. D.

testified that truthfulness was practised by Indians in their worldly relations.

According to Megasthenes, Indians were holding truth in high esteem. Fa

Hien and Huan Tsiang (who visited India during the reign of Harsha) recorded

similar observations. A virtue practiced for a thousand year became a tradition.31

The procedure and atmosphere of the Courts discouraged falsehood. The

oath was administered by the judge himself, and not by the staff of the court like

today. While giving the oath the judges were required to address the witness

extolling truthfulness as a virtue and condemning perjury as a horrible sin. As per

30 supra note 6, p.4 31 ibid, p.5

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Brihaspati smriti, Judges who are well-versed in the Dharmashastra should address

the witness in words praising truth and driving away falsehood from his mind. The

judges’ address to the witness did not consist of set words but a moral exhortation

intended to put the fear of God in him. All the texts are unanimous on this point.32

1.2 Judicial system in medieval India

The long reign of Hindu States had been broken at the end of the twelfth

century by the foreign rule of Muslim Turks. For two centuries, the Delhi Empire

or the Sultanate controlled the north and at times the centre of the country.33 The

country was divided once more into small kingdoms. But this did not result in any

great change in the judicial system which had taken roots during the preceding

thousands of years. The standards and ideals of justice were maintained in each

kingdom and the fundamental principles of law and procedure were applied

throughout the country.

The establishment of the Muslim rule in India opened a new chapter in the

judicial history of India. The Muslim conquerors brought with them a new

religion, a new civilization, and a new social system. This could not but have a

profound effect on the judicial system. The ideal of justice under Islam was one of

the highest in the Middle ages.34

The administration of justice was regarded by the Muslim kings as a

religious duty. This high tradition reached its zenith under the first four Caliphs.

The first Qadi was appointed by the Caliph Umar who enunciated the principle

that the law was supreme and that the judge must never be subservient to the ruler.

It is reported of him that he had once a personal law suit against a Jewish subject,

and both of them appeared before the Qadi who, on seeing the Caliph, rose from

his seat out of deference. Umar considered this to be such an unpardonable

32 ibid, p.5 & 6. 33 Romila Thapar, Thomas George Percival Spear, A History of India, Vol.1, Penguin Books India, New Delhi, 1990, p. 15 34 supra note 6, p.7

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weakness on his part that he dismissed him from office.35 The Muslim kings in

India brought with them these high ideals.

1.2.1 Judicial System under the Sultans

The Sultans of Delhi were, generally speaking, strict adherents to the Law.

Among them Qutub Uddin Aibek (1206-1211) left a permanent reputation and his

kingdom was governed by the best laws. Iltutmish (1211-1236) started the practice

of hanging a chain of justice outside his palace and of going about incognito in

order to see if justice was administered satisfactorily.36 His successors such as

Nasir Uddin Mahmud (1246-1266), Balban (1266-1286), Tughlaq Shah (1320-

1325), Fiioz Tughlaq (1351-1388), Bahlol Lodi (1451-1489) and Sikander Lodi

(1489-1517) maintained a high level of judicial administration, and they

considered the dispensation of justice a religious duty.37

They dominated the Northern, Central, Eastern and the Southern wings of

the country. The sovereigns of Delhi possessed the largest extent of territory. The

Kings of Bengal in the East and the Sultans in the Deccan also occupied important

positions. With the exception of the two states of Bijapur and Golconda in the

south where the Kings were Shiahs, the rulers in the rest of the country were

Muslims of the Sunni persuasion and followers of the Hanafi School. But, as the

judgments in the Baqiat and the Collections which relate to North and South India

respectively show, there was no difference between the Sunni and the Shiah

systems of the administration of justice.38

The appointment of the Chief Justice was usually made by the Sultan from

among the most virtuous (muttaqi tareen) of the learned men in his Kingdom. Ibn

Batuta gives reference to Qazis and their disciples in his Travels and this suggests

that the Qazis were occasionally teachers of law who had the ability to give correct

35 Abdur Rahim, The Principles of the Muhammedan Jurisprudence according to the Hanafi, Malikki, Shafi’I and Hanbali Schools, Luzac & Co., London,Madras: S.P.C.K.Depository, 1911, p. 21. 36 Muhammad Basheer Ahmad, The Administration of Justice in Medieval India, The Aligarh historical Research Institute, The Aligarh University, 1941, p.98 37 ibid, p.98 & 99 38 ibid, p.96

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judgment.39 Several of the Chief Justices of the Sultanate period were noted for

their independence of character. In State versus Sidi Maula and others (Beveridge

I, page 75; Badaoni, p. 171; Barni, pp. 210-211) Sultan Jalal Uddin wanted a

sentence of death passed on Qazi Jalal Uddin who was accused of sedition but the

Chief Justice refused even to convict him. Muhammad Tughlaq on one occasion

withdrew a suit of his own in the Chief Justice's Court when he found that the

Court refused to favour him. Such incidents enhanced the prestige of the Chief

Justice and his colleagues.40 Individual Sultans had very high ideals of justice. It

was sometime between 1327 and 1330 that Sulthan Muhammad Tughluq decided

on the policy of systematically filling the highest posts of his administration and

judiciary with foreigners and rewarding them with fabulous gifts and stipends41

1.2.2 Judicial System under the Mughals

The Mughal Government was established in India in 1526 A.D. by Babar

who defeated the last Lodi Sultan of Dehli and brought the Sultanate to an end.

His son, Humayun, was turned out of the country by Sher Shah Sur in 1540, but he

regained his kingdom in 1555 and from that date the Mughals ruled India

effectively until 1750 A. D. and nominally up to 1857, when the last Mughal

Emperor was succeeded by Queen Victoria as Empress of India.42 In the 16th and

17th centuries, the Mughal emperors unified practically the whole of North India

and much of the Decan, and built up an empire such as had not been seen since the

days of the Guptas.43

The King’s severity towards errors and misdemeanours committed by

officials in the course of government business was remarkable. Akbar was most

stern in dealing with offences against faith.44The Muslim sovereigns in India even

39 ibid, p.107 & 108 40 ibid , p.110 41 Ross E. Dunn, The Adventures of Ibn Battuta: A Muslim Traveller of the Fourteenth Century, University of California Press, 1986, p.189 42 supra note 37, p.133 43 supra note 28, p. 480 44 Father Monserrate, The Commentary of Father Monserrate, S.J. On his Journey to the Court of Akbar, Translated by Hoyland, M.A.,Humphery Milford, Oxford University Press, 1922, p.209

25

at the zenith of their power and influence seldom, if at all, attempted to tamper

with the day to day administration of justice. Historical research has not so far

established any such instance. On the contrary, there have been cases in which

they have bowed to the authority of the Law Courts, sometimes against their will.

In State versus Qazi Mir (Storia IV, p. 119), a Canon Law case, the court refused

to award the sentence of death for which Aurangzeb had directed the Public

Prosecutor to press.45

The author of Ain e Akbari says that Akbar passed every moment of his life

in self-examination or in adoration of God.46 The King has the most precise regard

for right and justice in the affairs of government.47 It would thus appear that in

Islam the whole community had, by implication, a responsibility to see that God's

commands were obeyed though it was, for practical purposes, always delegated to

the ruler. The administration of justice was an essential act for the fulfilment of

that responsibility. Sher Shah considered justice as the most excellent of religious

rites. Jahangir regarded the daily administration of justice in public as one of his

most sacred duties. Shahjahan once remarked in court that justice was the

mainstay of his government. According to Aurangzeb the “garden of

administration was watered by the rain of Justice”48 Akbar gave importance to the

trial of serious offences. By his direction all capital cases and all important civil

cases were conducted before him.49

1.3 Early British Period

The charter of 1600 by Queen Elizabeth established the English East India

Company in India. The Englishmen had settled at Surat with the leave of the

Moghal Government. They set up their factory at Surat with the permission of the

local Moghal Governor. Much information is not available regarding the earlier

45 supra note 37, p.68 & 69 46 Muhammad Basheer Ahmad, The Administration of Justice in Medieval India, The Aligarh historical Research Institute, The Aligarh University, 1941, p.67 & 68 47 Father Monserrate, The Commentary of Father Monserrate, S.J. On his Journey to the Court of Akbar, Translated by Hoyland, M.A.,Humphery Milford, Oxford University Press, 1922, p.209 48 supra note 47, p.67 & 68 49 ibid, p.209

26

judicial system at the Surat Factory. No regular tribunals were created at the

factory for deciding cases amongst the Englishmen inter se. The President and

Council wielded the judicial power. The authority to administer criminal justice

had been specially conferred on them by the Company under the King’s

Commission of 1623. An account of a criminal trial held in 1636 under this

Commission is available. The Master of the Ship Mary reported to the Governor

of the Surat Factory about an offence alleged to have been committed by an elder

seaman with a youth. The President and Council went aboard the ship. A table

and bar were set up; a jury was empanelled and witnesses were examined. The

man was convicted and hanged. This shows that the quality of justice

administered at the time was not very high. Justice was administered in a

summary manner and none seemed to care for even the elementary processes of

law.50

Madras was the first Presidency Town to be established by the British in

India. Here, the judicial institutions grew in three stages before 1726. In the first

stage, from 1639 to 1665, administration of justice was in an extremely elementary

state. The second period, which runs from 1665 to 1686, saw the establishment of

the court of the Governor and Council. The significant event during the third

period from 1686 to 1726 was the creation of two courts : the Admiralty Court and

the Mayor’s Court.51

Before 1726, the judicial system in the Island of Bombay grew in three

stages: the first stage ran from 1668 to 1683; the second from 1683 to 1690; and

the third from 1718 to 1726.52 The case of Rama Kamati shows the dark side of

the system of law and justice prevailing in Bombay at the time. Rama Kamati was

a wealthy and influential Hindu of Bombay who had stood by the company for

over thirty years. Rama’s servant was tortured to extort a statement implicating his

master. Governor Boone was responsible for torturing Rama's servant. The case

was tried by Boone, the members of the Council and Parker, the Chief Justice of

50 supra note 1, p.10 & 11. 51 ibid, p.12 & 13. 52 ibid, p.23.

27

the court. Rama was held guilty and he was sentenced to perpetual imprisonment

and the whole of his property was confiscated. After Rama's death it was

conclusively established that he was innocent and that the whole trial was a plot

based on lies, forgeries and fabrications, to which Governor Boone himself was a

party. The Judicial system such as it was continued to function till it was

superseded by a new judicial system under the charter of 1726.53

The judicial system at Calcutta was extremely rudimentary and was not at

all conducive to impartial administration of justice. All juridical powers were

concentrated in a single individual, the collector, who was an executive officer; the

authority vested in him was very extensive. The system continued to operate till

1727 when it was replaced by a new system under the Charter of 1726 in common

with the other Presidency Towns. It may be noted that while before 1727, the

judicial system at Calcutta was based on the Company’s authority as a zamindar,

after 1727, it derived its authority from the royal Charter.54

1.3.1 Charter of 1726

The Charter of 1726 granted special powers to the Company. The charter

of 1726 introduced uniformity of approach in this respect as in each Presidency

Town, similar judicial institutions were established, and even the subsequent

developments followed more or less a similar course. The Charter established civil

and criminal courts in the Presidency towns which derived their authority not from

the Company but from the British Crown.

1.3.2 Mayor’s Court

In each Presidency Town, the Mayor and the Aldermen were to constitute

the Mayor’s Court. It superseded all the other courts of Bombay, Madras and

Calcutta. The Mayor’s Court was to act as a court of record and thus had power to

punish persons for its contempt. The quorum of the Court was to be three – the

Mayor or senior Aldermen together with two other Aldermen. The Court was to

53 ibid, p.29. 54 ibid, p.33.

28

have authority to hear and try all civil suits arising within the Town and its

subordinate factories. The first appeal from the Court lay within fourteen days to

the Governor and Council, from where a further appeal could be lodged within

fourteen days with the King-in-Council in all matters involving 1,000 pagodas or

more. Thus, for the first time, a right of appeal to the King-in-Council from the

decisions of the courts in India was granted. The Court also had testamentary

jurisdiction and could thus grant probates of wills of the deceased persons. In case

a person died intestate, it could grant letters of administration.55

The criminal jurisdiction in each Presidency Town was vested with the

Governor and five senior members of the Council. Each of them individually was

to be a justice of peace and was to act in the same manner, and to have the same

powers, as the justices of peace in England.56 This system remained suspended

while the French had occupied Madras which they later surrendered in 1749. Then

the Charter of 1753 was passed in order to remove the difficulties of the preceding

Charter.

1.3.3 Charter of 1753

In September, 1746, the French occupied Madras and surrendered it to the

British in August, 1749. During the period of the French occupation, the Madras

Corporation established under the Charter of 1726 ceased to function. The lawyers

advised the Company that the foreign occupation had put an end to the Charter of

1726 in its application to Madras and that a fresh Charter was necessary to revive

the old institutions. Accordingly, King George II issued a new Charter on the 8th

January, 1753. The Company utilized this opportunity to remove the defects

which had been experienced in the working of the old Charter. The new Charter

was made applicable uniformly to all the three Presidency Towns.57 The judicial

system of 1753 was too much executive ridden. The judges of the Mayor’s Court

were the nominees of the government and to make matters worse, most of them

55 ibid, p.36 & 37. 56 ibid, p.37. 57 ibid, p.43.

29

used to be junior servants of the Company who began their Indian career without

any special training, a little more than midway in their teens.58

The criminal judicature also suffered from a similar weakness. Consisting

of the members of the executive, it was an insufficient deterrent to wrongdoing on

the part of the Company’s servants who tended to abuse their position with

impunity to the detriment of the people. It was too much to expect that the

Company’s servants sitting on the Bench could be impartial and could take a

detached and unprejudiced view in cases in which the Company or a member of

the Council or another servant of the Company happened to be interested.59

In 1772, the House of Commons appointed a Committee of Secrecy to

scrutinise the affairs of the Company. The Committee gave an adverse verdict on

the Calcutta judicial system in its seventh report. The report contained several

instances of high-handedness by the Calcutta Mayor’s Court.60

As a result of the criticism by the Secret Committee, the existing judicial

system was superseded and the Supreme Court was established at Calcutta in

1774. Its constitution was designed to remove the multifarious defects found in

the pre-existing judicial system. The Supreme Court was independent of the

executive or the Company and consisted of professional lawyers as judges who

knew the English law well. It was in a strong position to take an impartial view of

any matter in which the Company or its servants might be interested. Though, as

an instrument of justice it was far superior to the courts it superseded, yet it itself

brought a number of other difficulties in its train.61

1.3.4 Adalat System

Till the middle of the 18th century, the Company held under its sway only

the three Presidency Towns of Calcutta, Madras and Bombay. As has been

described earlier, a judicial system of some sort had been created in these Towns.

58 ibid, p.48. 59 ibid, p.49. 60 ibid, p.51. 61 ibid, p.51.

30

As time passed, the Company expanded its political activities and brought new

territories surrounding the Presidency Towns under its control. This territory

came to be known as the ‘mofussil’ in contradistinction to the ‘Presidency

Towns’. The Company had to provide for an administrative system in the

mofussil, and thus the adalat system came into being for the administration of

justice. The adalat system differed in many respects from the judicial system in

the Presidency Towns.62

1.3.5 Mofussil Diwani Adalat

A mofussil diwani adalat was established in each district with collector as

the judge. It was authorised to decide all civil causes such as disputes relating to

real and personal property, inheritance, marriage, caste, debts, disputed accounts,

contracts, partnerships and demands of rent. In all suits regarding inheritance,

marriage, caste and other religious usages and institutions, the laws of Qur’an with

regard to Mohammedans, and those of the Dharmasastras with respect to the

Hindus, were to be applied. In other words the Hindu Law and the Muslim Law

were applied for the Hindus and the Muslims respectively. The collectors who

were called upon to administer justice, being Englishmen, did not know much

about these legal systems. Therefore, to make the system workable and to enable

the collector-judges to decide cases according to the Indian laws, native law

officers, kazis and pundits, were appointed to expound respectively the Muslim

and the Hindu laws applicable to the facts and circumstances of the case in

dispute. The decisions of the adalat in cases upto Rs.500 were final.63

1.3.6 Mofussil Fozdari Adalat

A mofussil nizamat or fozdari adalat was established in each district to try

all kinds of criminal cases.64 It consisted of the Muslim qazi, mufti and

moulvies.The moulvies interpreted the Muslim law of crimes and the Kazi and

62 ibid, p.53. 63 ibid, p.57 & 58. 64 ibid, p.58.

31

Mufti gave fatwa and render judgment. The collector exercised general

supervision over the Adalat and ensured that there was no corruption and the

judgment was given impartially. The Fozdari adalat was not allowed to handle

cases where punishment was death sentence or forfeiture of property of the

accused. Such cases were tried before the Sadar Nizamat Adalat.

1.3.7 Sadar Diwani Adalath

Over and above the mofussil adalats, two superior Courts, the Sadar

Diwani Adalat and the Sadar Nizamat Adalat, were established at Calcutta. The

Sadar Diwani Adalath consisted of the Governor and members of the Council and

was to hear appeals from the mofussil diwan adalats in cases of over five hundred

rupees.65

1.3.8 Sadar Nizamat Adalat

The Sadar Nizamat Adalat consisted of an Indian judge known as the

Daroga-i-Adalat who was to be assisted by the chief-qazi, chief mufti and three

moulvies. All these persons were formally appointed by the Nawab on the advice

of the Governor. The function of the Adalat was to revise the proceedings of the

mofussil nizamat adalats and approve finally sentences of death and forfeiture of

property.66

1.3.9 Establishment of Supreme Court at Calcutta

The judicial functioning in Calcutta under the Charter of 1753 was very

weak and defective. On 26th march 1774 King George III issued a charter

establishing the Supreme Court at Calcutta. The institution of the Supreme Court

was primarily an act of reformation as it was designed to be a more effective

instrument of justice than the one it superseded. The judges of the Supreme Court

65 ibid, p.58. 66 ibid, p.58.

32

were lawyers. They were sent from England, were appointed by the Crown and

held office during Crown’s pleasure.67

The Supreme Court was simultaneously a court of law as well as of equity.

It thus constituted the first experiment of one single court administering both

common law and equity. Not only this, it also combined admiralty and

ecclesiastical Jurisdiction as well. In this respect, the Supreme Court may even be

regarded as an improvement over the judicial system prevailing in England at the

time where all these different types of jurisdiction were administered by separate

and distinct courts, thus giving rise to proliferation of courts.68

With the passage of the Regulating Act, there came into existence in

Bengal, Bihar and Orissa, two distinct and independent judicial systems. One was

the Company’s system in the mofussil, self-sufficient in itself, having a hierarchy

of adalats, and deriving its authority from the Moghul government’s grant of

Diwani to the Company. The other was the Supreme Court, a royal court sitting at

Culcutta, and deriving its authority from the British Crown and parliament.69 In

1798 King George III issued Charters for creating Recorder’s courts at Madras and

Bombay.

The Recorder’s Court at Madras did not enjoy a long span of life. In 1800,

the British Parliament passed an Act authorising the Crown to establish the

Supreme Court by a royal charter in place of the Recorder’s Court. The powers

vested in the Recorder’s Court were to be transferred to the Supreme Court which

was to enjoy the same jurisdiction and powers, and was to be subject to the same

restrictions as the Supreme Court at Calcutta. On 26th December, 1800 King

George III issued the letter patent setting up the Supreme Court at Madras which

came into being on the 4th September, 1801. Sir Thomas Strange who was already

working as the Recorder, was appointed as the Chief Justice of the Supreme

Court.70

67 ibid, p.68 & 69. 68 ibid, p.69. 69 ibid, p.73. 70 ibid, p.103.

33

The Recorder’s Court at Bombay subsisted for a longer period than its

counterpart at Madras. In 1823, an Act of Parliament authorised the Crown to

establish a Supreme Court in place of the Recorder’s Court at Bombay by a royal

Charter. The Charter was issued on the 18th December, 1823. The Supreme Court

was to have the same number of judges and was to be invested with the same

powers and authority, and was to be subject to the same limitations, restrictions

and control, as the Supreme Court at Calcutta. The Court was formally

inaugurated at Bombay on the 8th May, 1824, with Sir E.West as the Chief

Justice.71

1.4 Pre Independence Stage

A notable feature of the Indian judicial system before 1862 was the

existence of two parallel systems of courts – the Supreme Court in the Presidency

Towns and the adalat system in the territory, known as the ‘mofussil’, outside the

Presidency Towns. The two systems differed from each other in many respects.

The Presidency Towns were founded by the British and were given a distinctive

British character from the very beginning. The judicial system was developed

primarily to cater to the needs of the Englishmen residing there and, therefore, it

was a replica of the English judicial system. On the other hand, in the mofussil,

the preponderant population was Indian, and the British administrators realised

that it would not work if an alien system was foisted on them. Accordingly, a

simple adalat system was developed there which administered the indigenous

Hindu and Muslim laws. The adalat system maintained this characteristic

throughout the course of its existence.72

The Indian High Courts Act was passed by the British Parliament on the 6th

August, 1861, and was titled as “An Act for establishing High Courts of Judicature

in India”. It was a small piece of legislation consisting of 19 sections in all. Its

main function was to abolish the Supreme Courts and the Sadar Adalats in the

71 ibid, p.103. 72 ibid, p.3.

34

three Presidencies and to establish instead the High Courts.73 By the Indian High

Courts Act, 1911, a few modifications were effected to the Indian High Courts

Act, 1861. First, the ceiling on the number of judges in a High Court was raised.

The Act of 1861 had fixed the maximum number of judges, excluding the Chief

Justice, at fifteen.74

In 1862, the disparate judicial systems existing in the Presidency Towns

and the mofussil were unified by establishing the High Courts. In 1935, the British

Parliament enacted the Government of India Act which sought to remodel the

Constitution of the country on federal lines. The act contained a number of

provisions regulating the composition, constitution and working of the High

Courts.75 The High Courts were the precursor of the modern system of law and

justice in India.76

1.4.1 Jury Trial in British India

There is much diversity of opinion as to the utility of the jury system in

Indian criminal trials during the British regime. The system was not indigenous

and it worked under many disadvantages. The majority verdicts of a small Jury

can never command the confidence which the unanimous verdict of a jury of 12

inspires. Difficulties of language and complexities of caste militate against the

system’s usefulness and in some districts there is a serious danger of prejudice and

corruption.77

Anyhow, the system of jury trial during the British regime yielded some

benefits also. The great advantage was that the ordinary citizen should be

associated with the administration of criminal justice and that the public should

realize that the enquiry into crime and its punishment is not entirely the business

of the paid servants of the State. There is, however, much to be said on the other

73 ibid, p.258. 74 ibid, p.265. 75 ibid, p.266 76 ibid, p.3. 77 M.Krishnamachariar, Trial by Jury in British India, V.S.N.Chari and Co., Nungambakkam, Madras, 1937, p.xiv.

35

side. A Jury is emphatically not a suitable tribunal for the trial of difficult cases,

particularly those involving an elaborate study of documentary evidence. Service

on a Jury involves much dislocation of ordinary commercial life and it is

questionable whether the advantages of the system are sufficient to compensate for

its drawbacks. Moreover, from the point of the accused, it must be remembered

that a trial by jury takes away the right of appeal on the facts.78

1.5 Indian independence Act 1947

Lord Mountbatten’s plan of June 1947 was accepted by the All India

Congress Committee and the Muslim League which lead to the passing of the

Indian independence Act 1947. It marked the end of the British Rule in India.

India was divided into two nations namely India and Pakistan.

1.6 Post Independence Stage

The Indian Constituent Assembly passed the Abolition of Privy Council

Jurisdiction Act in 1949 to abolish the jurisdiction of the Privy Council in respect

of appeals from India and also to provide for pending appeals.

1.7 Views of Constitution makers

The debate in the Constituent Assembly throws light into the view of the

members regarding the apprehension of the nature of judicial process in India.

This debate started on 6th December, 1948. It was regarding the omission of ‘due

process’ clause in Article 15 of the Draft Constitution (present Article 21).

The Drafting Committee has drafted Article 15 of the Draft Constitution as

follows:

“No person shall be deprived of his life or personal liberty except

according to procedure established by law”.

There were several movements for amendment in the constituent assembly

for substitution of the words ‘according to procedure established by law’ by the

78 ibid

36

words ‘without due process of law’. Among the members participated in the

discussion on 6th December, 1948, all members except Shri.Alladi Krishnaswamy

Ayyer argued for the amendment.

1.7.1 Views of Alladi Krishnaswamy Ayyer

Alladi Krishnaswamy Ayyer argued that the expression ‘due process’ as

interpreted by the English Judges connoted the due course by legal proceeding

according to the rules. According to him, if expression ‘due process’ has been

understood as in England there might be no difficulty. But, it has been applied

differently by the United States Supreme Court. According to him, there is no

consistent view in America by the American Supreme Court regarding the

doctrine of due process.

He doubted as to whether three or five gentlemen, sitting as a court of law,

and stating what exactly is ‘due process’ can be regarded as more democratic than

the expressed wishes of the legislature. He argued that if the ‘due process’ is

incorporated, it may serve as a great handicap for all social legislation, ultimate

relationship between the employer and labourer, for the protection of children and

for the protection of women. He urged the House to take into the account the

future progress of India, the well-being and the security of the States, necessity of

maintaining a minimum of liberty and the need for co-ordinating social control

and personal liberty before taking a decision on the amendment. Anyhow, he

admitted that the support which the amendment had received revealed the great

faith which the legislature and the Constitution makers had in the judiciary of the

land. He conceded that the Drafting Committee in suggesting the procedure

established by law instead of ‘due process’ of law was possibly guilty of being

apprehensive of judicial vagaries in the moulding of law. He stated that he was

still open to conviction and if other arguments were forthcoming he might be

influenced to come to a different conclusion.

The debate could not be completed on 6th December, 1948. When the

debate was taken up on the next day, Dr. Ambedkar requested the Chair to adjourn

its consideration to sometime.

37

1.7.2 Ambedkar’s Remarks

When the debate was resumed on 13th December, 1948 there was no

discussion and Ambedkar was called for the reply. Ambedkar argued that ‘due

process’ raises question of relationship between legislature and the judiciary. In

every fundamental constitution it is always open to the judiciary to decide whether

the law enacted by the legislature is ultra vires with reference to the powers of

legislature granted by the Constitution. According to Ambedkar, in addition to the

above, the ‘due process’ clause would give the judiciary the power to question the

law made by the legislature on another ground also. That was whether the law

was in keeping with certain fundamental principles relating the rights of the

individual. According to him, thus the judiciary will have the power to question

the law on the ground whether the law was good law, apart from the question of

powers of the legislature making the law. That, in the opinion of Ambedkar,

would be an additional power to the judiciary for declaring the law invalid.

According to Ambedkar, there were two views on this point. One was to

give the judiciary the authority to sit in judgment over the will of the legislature

and to question the law made by the legislature on the ground that it was not good

law in consonance with fundamental principles. The second was that the

legislature ought to be trusted not to make bad laws. According to him, there was

danger on both sides. The possibility of legislature packed by party men making

laws violating fundamental principles affecting the life and liberty of an individual

cannot be ruled out. At the same time, he cannot agree with five or six gentlemen

sitting in the Supreme Court examining the laws made by the legislature and by

dint of their own individual conscience, bias or prejudices, determining which law

is good and which law is bad. According to him, the dilemma is like the case of a

man who has to sail between Charibdis and Scylla which are two monsters of

Greek mythology.

Ultimately he left the issue to be decided by the House. Subsequently, the

amendment was put to vote and was rejected by the House.