Nirma University of science and technology Institute Of Law B.A. LL.B.(Hons.) Legal and constitutional History of India
Sem- I
Topic-5 [5.1]
Judicial Reforms by Lord Cornwallis
• The Governorship Of Cornwallis was extended from 1786 to 1793 • Constituted a very remarkable and Highly creative period in the Judicial system of India • He introduced changes in the judicial system thrice in1787,1790,1793 Judicial Reforms by Lord Cornwallis • He thoroughly reorganized the civil and criminal judicial system in Bengal, Bihar and Orissa • Demand raised for the merger of revenue and judicial functions • John Shore took leadership to bring this merger Judicial Reforms by Lord Cornwallis • April 12,1786 the Company directed Cornwallis to vest in one person the revenue, judicial and magisterial functions • A step with the purpose of promoting simplicity, justice and economy
Cornwallis’s plan of 1787
• The key note of the plan was economy • Tried to achieve purity of administration by increasing the salaries of the collectors • Existing 36 districts were reorganized and and the number of districts were reduced to 23 • Collector –an Englishman–in charge of each districts • Collector was to collect revenue and decide cases and matter related to it • Collector was to act as judge in Mofussil Diwani Adalat of district,
• •
He was entrusted with magisterial power in districts Collector was required to keep his two functions separate from each
other His revenue functions in the revenue court was known as Mal Adalat •
• From Collector's revenue courts first appeal to the Board of Revenue at Calcutta and final appeal to the G.G.in council • Mofussil Diwani Adalat could decide civil cases, claims concerning succession, boundary disputes of zamindars in deciding which collector had to pay due respect to the prevailing local customs and usages • Appeal from Mofussil Diwani adalat to Sadar Diwani Adalat in matters of more than Rs 1000 and where valuation of suit was more than 5000 pound further appeal to the king in Council in England • Sadar Diwani Adalat consisted of G.G and council and assisted by the Native Law Officers • At district level collector was assisted by the Registrar(appointed in each district) • Registrar could try petty civil cases up to Rs 200-these decrees required to be countersigned by the collector • As a magistrate collector could arrest, try and punish criminals in petty offences • In case of graver offences, where imprisonment was expected of more than 15 days the arrested accused was sent to nearest Mofussil Nizamat Adalat • All Europeans who were not British Subjects were placed on same footing as the Indians and were tried in Mofussil Nizamat Adalat Defect: Justice was made subservient to the needs of revenue collection
Reorganization of Criminal Judicature
Situations before 1790 Jails were overcrowded Corruption was rampant
Degradation of justice: The administration of criminal justice was left to the Muslim law officers. The mofussil fauzdari adalat was manned by mufti, maulvi and kazis. The Sadar Nizamat Adalat was presided over by Reza Khan as the Naib Nawab and he had total authority to appoint and remove the criminal judges and he was not responsible to anybody. The control of Governor General and Council was only nominal and the orders and sentences passed by the Sadar Nizamat Adalat were final and sometimes were executed without informing to the Rembrancer. Sometimes the details of the sentence were reported to the Remembrancer but the grounds on which the specific punishment was given were not reported to him. The salaries of these officers were paid out of the allowances given to the Nawab and consequently their salaries were very low and meager which led them to make corruption. Too much power was given to the mofussil nizamat Adalat and there was no adequate supervision over it. They could pronounce final orders except cases involving life or limb in which Sadar Nizamat’s order would be final. Criminal proceedings were tardy and dilatory Sometimes delay occurred due to the load of work and sometimes due to the difficulty of procuring defense e or prosecution witnesses. Sadar Nizamat Adalat’s proceedings were extremely confusing, chaotic and it took long time to dispose of the pending cases which were sent from the mofussil nizamat courts. Punishments awarded Punishments awarded in many cases appeared to have no relation to the nature of the offences. There was no measure or standard for awarding punishments and the merits of the case were hardly considered in awarding the sentence. Misapplication of law Inadequate punishments were awarded to hardened criminals and sometimes severe punishments were given to the innocent persons or to those who had committed less serious crimes.
In 1790 Lord Cornwallis addressed a questionnaire to the several magistrates inviting their comments on the prevailing criminal judicial system. The magistrates’ replies reveal the evils of the criminal justice system and Cornwallis realized that certain vital changes were required in the system of criminal justice. He diagnosed two important sources of these evils-(i) defects in the constitution of the criminal courts (ii) the gross defects in the Muslim law of Crimes. Cornwallis resolved to abolish the authority of Nawab over the criminal judicature and to transfer the administration of criminal justice from Muslim Law officers to the Company’s legal servants.
Scheme of 1790- Reforms in criminal judicature 1. Three limbs: Sadar Nizamat Adalat ( presided by G.G. and council-assisted by Muslim law officers and they were just to expound the law) The adalat was to meet once in a week, and required to maintain regular diary of all its proceedings. Court of Circuit At lowest rung – magistrates in the districts 2. Reorganization of lower courts Mofussil fozdari adalats were abolished and four Courts of Circuit were establilshed.
All districts were divided into four divisions Patna, Calcutta, Murshidabad, Dacca. Court of Circuit Consisted of two servants of the Company In each division Not stationary but moving court, went from district to district within the division to try all criminal cases (visit each district within its jurisdiction twice a year to dispose of criminal cases awaiting trial) Two gaol deliveries annually Assisted by Muslim law officers and security of tenure was given to them In case of death and perpetual imprisonment the decision of the Sadar Nizamat Adalat would be final 3 Collector’s Functions Collector in each district would act as Magistrate, His Functions: to arrest the accused and hold inquiry in to the matter, If the Offence was petty- he could award punishments If the offence was serious, and pending the arrival of the court of circuit it can commit the accused to the prison or release him on bail Every month he was to make report to the Sadar Nizamat Adalat 4 Crimes by British Subjects Provisions were same as in 1787
Reforms of 1793
1. Separation of Executive and Judiciary Regulation II of 1793 abolished the mal adalats and transferred the suits triable there to Mofussil Adalats Collector was made responsible only for revenue collection Collectors was deprived of judicial powers Revenue cases became triable like ordinary cases 2. Executive subjected to judicial control
Regulation III made the collectors and all executive officers amenable to the diwani adalats for their official acts. Formerly if any oppressive act was committed by the executive officers, the injured party had to go to Calcutta to make petition to the Government. These petitions were sent back to the collector who was supposed to make inquiry but in fact he did not make any honest inquiry. Cornwallis took positive step by making the officers subject to the judicial control and in this way established the sovereignty and rule of law. 3. Suits against government The reforms conferred on the people the right to bring suits against the Government in diwani adalats so all suits between the government and the private individual would be decided in the diwani adalats. 4. British subjects and Company’s adalats British subjects residing in interior areas beyond Calcutta could recover their claims against Indian inhabitants by resorting to the local diwani adalats but Indian inhabitants had no such powers, they had to go to Calcutta which was very expensive and time consuming. The reforms of 1793 empowered diwani courts not to allow any British subjects to reside at a distance greater than 10 miles from Calcutta unless they executed a bond rendering themselves amenable to the jurisdiction of diwani adalats in all civil cases instituted by Indians up to sum involving 500 rupees. 5. Diwani Adalats reorganized Regulation III of 1793 reorganised the Diwani adalats . In each district-and in each of the three cities of Patna, Murshidabad and Dacca a Diwani court was established. It was superintended by Company’s servants. It was authorized to take cognizance of civil, revenue and criminal cases Proceedings and decree of the court would be made in open court Court would follow rules and regulations 6. Court of Appeal Formerly appeal from mofussil diwani adalts were made subordinate to Sadar diwani adalat, which was at far distance, the process was expensive and time consuming. To remove this difficulty a new provision was made in the reform –four courts of appeal were established at Patana, Dacca, Calcutta,
Murshidabad ; each consisted of three servants of the Company of whom two would make quorum. Each court had following functions: • To try civil suits sent to them by the Sadar diwani adalat or government, • To try original suit or complaint which was rejected by the mofoussil diwani adalat • To receive charges against judges of diwani adalats and forward the same to Sadar adalats • To hear appeals from all diwani adalats if filed within three months These Courts were known as Provincial Courts of Appeal and they would supervise all diwani adalats. 7. Sadar Diwani Adalat Highest Court G.G. and members of Council were judges Hear appeals from Court of Appeal involving subject matter of more than 1000rupees Further appeal was allowed to the King in Council in Cases involving sum of 5000 pound or more Supervise and inspect lower adalats 8. Subordinate Civil Judicature To save the mofissil adalats from increasing work load and speedy disposal of cases one provision was made of registrar. Registrar’s court was empowered to decide suits up to Rs. 200 in each district and the judge of the mofussil court must countersign the order of the registrar. The registrar would be a company’s servant In each district Sadar Amins or commissioners known as Munsiffs were appointed to decide Cases up to Rs. 50 Native Law officers The personal laws of Hindus and Mohammedans were applicable in cases relating to marriage, inheritance, caste, religious usages and institutions. The Native law officers were appointed by G.G. to assist the Court and to expound the law 9. Court Fees were abolished
The fees imposed in the plan of 1787 were abolished. 10. Reforms in Criminal Judicature The magisterial powers of the collector were taken away and the judges of diwani adalats were empowered to exercise this jurisdiction. The Provincial courts and the courts of circuits were merged. 11. Legal Profession By regulation VII of 1793 the profession of law was created and organized in India. 12. Uniform pattern of Regulations So far regulations were issued without any uniform pattern, but this reform provided that henceforth Regulations would contain preamble which will state the reasons for enacting the regulations, every regulation would have title to explain the subject matter. Defect Indians were excluded The scheme did not make any provision for any Indian to hold any judicial office except that pf Munsiff. The reforms of Cornwallis were known as Cornwallis Code.
Reforms of John Shore Before High Courts were established at Bombay, Madras and Calcutta two sets of courts were existing there-
Presidency
Mofussil
Crown’s Courts
Company’s Courts
Recorder’s Court /SC
Mofussil Courts Sadar Courts
Cornwallis 1793 Sir John Shore Shore had supported Lord Cornwallis in bringing reforms so he was well aware of the existing Indian situations Cornwallis’s scheme was well planned but it led to accumulation of large volume of litigation and arrears of civil cases awaiting disposal in civil adalats. So justice was threatened. Justice delayed means justice denied. The purpose of Cornwallis to give Indians free and impartial justice was completely nullified.
In 1793’s plan revenue disputes were allotted to the diwani adalats out of which two difficulties arose 1) Increase of work in diwani adalats; accumulation of undecided cases 2) Disposal of revenue demands by Zamindars against tenants was very much delayed by this accumulation of work Both of these adversely affected the collection of revenue
John Shore’s Changes: First Change in 1794 To prevent the time of diwnai adalats from the overload of petty matters and to expedite justice administration, Regulation VIII made decrees of the registrar final in all suits for money of personal property valuing up to Rs 25 The diwani adalats has only discretionary power to revise the decision made by registrar in such a case if the decrees appeared to be made erroneous or unjust. In such cases adalats’ decision would be final. In all cases of real and personal property valuing over Rs 25 registrar’s decisions were made appealable to the Provincial Courts of appeal in place of diwani adalats Diwani adalats could refer the matter to the Collectors for their report on any accounts the adjustment of which was necessary for the final determination of case concerning rent or revenue. The collector’s report could be confirmed, set aside or altered by the Diwani adalats.
Further Changes in 1795 1794’s reforms did not improve the situation –various readjustments of civil courts were made in 1795. The 1794’s reforms relieved diwani adalats but it overburdened provincial courts because of appeals from registrar’s to these courts. So Reg. XXXVI of 1795 provided that appeals from registrars were to go to district diwani adalats and not to the provincial courts and the decision of the diwani adalats would be final. Munsiffs could decide the petty cases up to Rs 50 and only one appeal in district diwani adalats were allowed from those cases. The registrars were empowered to decide cases up to Rs 200 and appeal from their decision can be made in district diwani adalats and no provision for further appeal. District diwani adalats could hear the civil cases of valuation of more than Rs 200. An appeal from these cases could be made in provincial Courts. Where valuation was more than Rs 1000, a further appeal was allowed to the Sadar Diwani Adalat. The Registrar to the Sadar Diwani Adalat was to prepare each month one report specifying the number of suits decided in the month by diwani adalats, registrars, munsiffs in each district and number of appeals decided by each provincial courts; and he had to compile a report on the number of cases pending before the various courts after every six months. Court fee was imposed on new cases as well as on the pending cases and if fees on the pending cases were not paid within a fixed date, the cases would be dismissed. The fees were also imposed on the calling and summoning the witnesses, exhibits and appeals. This regulation converted the imposition of court fees into stamp duties.
Changes introduced in 1797 The Court fee was increased and it was made compulsory to use special stamped papers for filing papers in the courts. For speedy disposal of cases it was provided that the decrees of the Provincial courts of Appeal were final in all cases of money or personal property up to Rs 5000 in value. In suits involving real property of more than Rs 1000, the decision of provincial courts were made appelable to the Sadar Diwani Adalat Appeals from Sadar Diwani Adalats were made to the King in Council in cases of more than five thousand pound and this appeal can be filed only within six months. The British Parliament by passing an act of 1797 reduced the number of judges from four to three i.e. CJ and other two judges. The Act of 1797 also confirmed the preparation of Code of Regulations enacted by the Governor-General in Council and Registered in the Supreme Court. The courts were required to administer justice according to those regulations. Defects: Restricts right of appeal Justice was made expensive Reforms by Lord Wellesley In 1798-Lord Wellesley succeeded John Shore as the Governor General. To remove defects from the existing judicial system he introduced certain changes which are as follows: 1. Appeals
Decisions of the Provincial Adalats were made final in all cases involving land or other real property valuing not more than Rs 5,000. Now the appeals could go to the Sadar Adalats only when the subject matter involved exceeded Rs 5000 in value irrespective of whether real or personal property was involved.
2. Separation of Judicial functions from Executive • He was against the concentration of legislative, executive and judicial function in G.G. For G.G.-not possible to preside over Sadar Diwani and Nizamat adalats • Regulation II of 1801 provided that Sadar Diwani and Sadar Nizamat adalats were presided over by the three judges selected and appointed by the Governor General in council. • The Chief Judge would be member of the Council and G.G and commander in chief could not occupy this post. • The other two judges –to be servants of the company having experience of judicial work in provincial court of appeal • Sadar Diwani adalats would be open courts and two judges were form quorum of the Court 3. Appointments of Sadar Ameens • For speedy disposal of cases in Zilas and Cities, Head Native Commissioners known as Sadar Ameens were appointed. • Judges of the Zila and City court could appoint them from amongst the persons of ability and experience with the prior approval of the Sadar Adalats. • Sadar Ameens could decide cases up to Rs 100 referred to them by the Judges of the Zila and City courts 4. Assistant Judges
• In Zila and City assistant judges were appointed to decide appeals from the Courts of Registrar or Native Commissioners and original suits which the judges of the Zila and City courts referred to them. 5. Adalat system extended The Adalat system was extended to the ceded and conquered territories, the ceded territory were divided into districts and in each district one servant of the Company was appointed as judge and Magistrate and another person as the Collector. Registrars, Sadar Ameens and Munsiffs were appointed to decide civil cases. Registrar- Rs 20 Sadar Ameens- Rs 100 Munsiffs- Rs 50 The Jurisdiction of the Sadar Adalats at Calcutta was also extended to the ceded territories. In the same way the conquered territories were brought under the adalat system of the Company. Defects Munsiffs were not paid properly
