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LEGAL HISTORY: READING MATERIAL

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PATNA CASE Highlights the defects in the judicial system introduced in India by the Regulkating Act, 1773. Facts of the Case

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1. Shahbaz Beg Khan was a wealthy rent farmer of Patna, who was a native of Kabul. Came to India and settled down in Patna. 2. He married Naderah Begum and acquired a large amount of money in the service of the East India Company. He had obtained a military command under the company. 3. He had no issue and invited his nephew, Bahadur Beg from Kabul to reside with him. Bahadur Beg married his Uncle’s sister-in-law in the hope of inheriting the estate. 4. In 1776, Shahbaz Beg died without an heir and his death raised the question of who would be the beneficiary of his considerable wealth and who would assume the responsibilities (profits) of revenue collection on his lands. The Legal Conflict: Jurisdictional Issues 1. A month or two after the death of Shahbaz Beg, his nephew Bahadur Beg filed a petition with the Court of the Provincial Council in Patna, to lay claim to the estate. In the petition, Bahadur Beg asserted that Shahbaz Beg brought him from Kabul to make him ‘the master of his house’. He claimed that Shabaz Beg made him his heir and his representative. 2. Bahdur Beg complained that Naderah Begum was making off with goods from the House and asked that all the effects of the estate be secured and that the qadi be asked to investigate and establish Bahadur Beg’s right to the estate. 3. The Court of the Provincial Council quickly directed the qadi and mufti (legal scholar) of the court to make an inventory of all the property in the estate (with a representative of the widow present) and to secure it. 4. The court asked for a written report that would establish ‘according to ascertained facts and legal justice’ who was entitled to which portions of the estates under Muslim law. 5. From the perspective of the Provincial Court they followed all the procedures. A case of succession was referred to the Muslim court officials for their advice.

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6. The officials on their part presented their report, which included a fatwa, a legal ruling under the Muslim law. It outlined no proof in favour of the nephew’s claim, but it challenged the evidence presented by the widow. 7. Both the qadi and Bahadur Beg claimed her documents to be forgeries. Witnesses were examined and oral reports brought back by couriers. The qadi and mufti concluded that the widow had misused the seal of Shahbaz Beg, which was illegally in her possession to get the documents prepared. However, no evidence in support of nephew’s claim was reviewed. The report recommended awarding three-quarters of the estate to the nephew and onequarter to the widow. A larger share could not be given to a widow under a Muslim law. 8. The enforcement of the orders created much hardship for the widow, as she had to move from room to room and finally shifted to a nearby shrine for refuge. The court posted sepoys to keep an eye on her movements. But she still had Shabaz Beg’s seal and the land grant papers and she had some influential allies. 9. Naderah Begum then filed a complaint through an English attorney in the Supreme Court (barely three years old) against Bahadur Beg, the qadi and the two muftis for assault and battery. She complained of the indignity of having to undergo a body search and demanded restitution of isx hundred thousand rupees. 10. The Supreme Court was independednt of the Adalat System and was charged with administering not Muslim or Hindu Law, but English law. The court had already been at odds with the Governor-General and Council, and the justices msut have seen in the Patna case an opportunity to solidify their authority. The response to the widow’s complaint was to issue a warrant for the arrest of Bahadur Beg, the qadi and the two muftis and to dispatch to Patna a sheriff to take them into custody. 11. Warren Hastings and his four councilors were outraged. The qadi and muftis were the officers of the court and so salaried employees of the company. They were being arrested for having followed the directives of the Patna court to

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recommend a settlement in a case where Muslim law was to be applied. For Hastings and others, the actions of the Supreme Court threatened the very ability of the Company to maintain order, since it could not guarantee protection to salaried officials working under the direction of English superiors on matters of justice. Hastings insisted that the Council take the unusual risk of posting bail for the defendants and indemnifying them (on behalf of the Company) in the amount of four hundred thousand rupees. 12. Jurisdictional boundaries were at the centre of the controversy. There was the narrow jurisdictional question about the scope of the Supreme Court’s authority in the case. The Court was supposed to have jurisdiction over English subjects and Company officials. The qadis and muftis, though also Mughal officials, received salaries from the Company; even Hastings, who would have liked to have been able to argue that the Supreme Court had no jurisdiction over them, recognized that it did. 13. Supreme Court’s jurisdiction was less clear in the case of Bahadur Beg, who was in the ambiguous position of many other rent farmers in the Mughal territories now under Company’s rule. They were not salaried employees but they were an integral, indispensable part of the Company’s revenue-collecting system. Hastings and other Company officials feared legal policies that might expose revenue farmers as a class to litigation and so potentially disrupt collections. Evaluation The case called into question whether the scheme envisioned by Warren Hastings and others – a complex mixing of Muslim, Hindu and British authority in a patchwork legal order – could work at all. Philip Francis, a councilor and a critic of Hastings, voiced the opinion that a declaration of British sovereignty would solve the problem of the hybrid system. He was anticipating a move toward more clearly established British hegemony which would eventually come after many other cases straining the system of multiple authorities. There were other issues aside from the jurisdictional issues like the real and perceived distinctions between the Muslim and English legal actors. They were

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unsure in handling Naderah Begum. At times, they portrayed her as a schemer who consciously acted the part of a helpless, aggrieved woman, as a matter of strategy. Yet British officers also found it difficult if not impossible to believe that a woman, especially a Muslim woman, would be capable of such sophisticated legal maneuvering. It also brought out in open the difficulties of the plural legal order where the fact-finding was in the hands of the Muslim law officers, while the legal ruling was in the hands of the English judges. The Patna case came to symbolize the tensions between the two British courts, and between two visions of colonial law. There was an emphasis on the virtue of the British justice, the procedural purity. The Supreme Court, after ten day of procedure, decided in favour of Naderah Begum, awarding her three hundred thousand rupees. The three defendants were arrested.

Kamaluddin Case: 1. Kamaluddin was a farmer of Hidglee. 2. Prosecuted without bail in 1775 by the Calcutta Revenue Council on the grounds of arrears of revenue.

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3. He disputed the claim on the grounds that he was a holder on behalf of Kantu Babu. 4. It was customary to release a person in such cases. 5. Kamaluddin obtained a writ of Habeas Corpus from the Supreme Court to release him. 6. The Supreme Court held that in cases of disputed accounts a person should be held to bail till the enquiry as to his obligations to pay was completed 7. Judges held that Kamaluddin should not be arrested till his under-renter had been called upon to pay arrears and had proved to be insolvent 8. The Government regarded this as an interference in the Diwani rights of the Company in which the Supreme Court had no right to encroach. 9. The Supreme Courts release of Kamaluddin extended its jurisdiction 10. The majority in the Governor General’s council asked for reimprisonment, but Warren Hastings refused to support this step of the majority. 11. Justice Elijah Impey contended that it had been usual practice to take bail and the rent was demanded first from the under-renter as practiced. The Supreme Court simply compelled the revenue officers to act in conformity with the established customs and usages of revenue collection 12. The revenue officers were shocked by the interference of Supreme Court’s decision, but due to lack of clarity in the Regulating Act of 1773 about terms of Executive and Judiciary, the tension between the two mounted. 13. The decision only highlights the ambiguities and defects in the Regulating Act. With clarity such situations could have been avoided.

ACT OF SETTLEMENT, 1781 Purpose of the Act: To remove doubts and difficulties which had arisen regarding the true intent and meaning of certain clauses in the Regulating Act and the Charter which had created dissensions between the Court and the Government and which, if not removed, might lead to further

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mischief and misunderstanding. There was unhappiness with the interference of the Supreme Court. 1. To support the lawful government of Bengal, Bihar and Orissa so that revenue might be collected with certainty as the interference by the court let to great difficulties in revenue collection. 2. To maintain and protect the inhabitants in the enjoyment of all their ancient laws, usages, rights and privileges. This was done to remove an apprehension of the alienation of the Indians. 3. The purpose was to strengthen the Executive to consolidate the Empire at the expense of the court. Provisions of the Act: 1. The Governor-General and Council were not to be subject, jointly or otherwise, to the Supreme Court’s jurisdiction for anything done or ordered by them in their public capacity and acting as “Governor-General in Council”. 2. Further laid down that no person was to be held responsible in the Supreme Court for act done by him in pursuance of the Governor-General and Council’s order in writing, both in civil and criminal matters. 3. Such immunity did not extend in the cases involving British subjects, even if the order was in writing and the Supreme Court could intervene and the Executive was liable to be tried before any competent court in England if applied for. 4. The provision vested an uncontrollable power in the Government in respect of Indians in Bengal, Bihar and Orissa with no remedy against its arbitrary acts.

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5. The jurisdiction of the Supreme Court was restricted in one very vital respect. It was not to exercise any jurisdiction in any revenue matter, or in its collection, or entertain questions over the acts of revenue officers “in the line of their duty”. This was held by the Supreme Court in Pearemony Dossee v B. Bonnerjee. 6. Land-owner, zamindars, farmer of land rent, etc were also exempted from the jurisdiction of the Supreme Court, reversing the decision in the Patna Case. 7. The Act of settlement exempted the British subjects (including the Hindu and Muslim servants of the Company) from the court’s jurisdiction in matters of personal law (inheritance, succession) and contract. For these matters they were to take recourse to the Company’s Adalats. But in criminal matters and torts, they continued to be under the jurisdiction of the Supreme Court as laid down under the provisions of the Regulating Act. 8. Section 17 of the Act of 1781 declared specifically that the Supreme Court would have full power and authority to hear determine all actions and suits against the inhabitants of Calcutta. In matters of personal laws and contract, the respective personal laws (broadly interpreted to include not only succession but also marriage, dowry, adoption, etc.) of Hindus and Muslims were to be applied. 9. In case one of the parties was a Muslim or a Hindu, the court was to apply the law and usages of the defendant.

After 1781, the Supreme Court came to apply three

systems of law, the English, Hindu and Muslim. 10. Entire Muslim and Hindu laws of Families were safeguarded to respect the civil and religious usages of the Indians. Accommodate the religious sentiments in both civil suits and criminal cases, especially with regard to arrest. 11. The Sadar Diwani Adalat came to be co-equal in status to that of the Supreme Court and sanctioned by the British Parliament. It was to be a court of Record and the final court of appeal in civil suits in cases below ₤5000. In and above such limits, appeal to be made to the Privy Council. 12. All revenue matters came within the purview of the Sadar Diwani Adalat, though the impartiality of the Sadar Court with regard to the excesses in revenue collection was in doubt.

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13. The judges and the law officers of the Company’s courts were made immune from any civil action in the Supreme Court in the discharge of their duties. But an action for corrupt practices against the judicial officials could be brought in the Supreme Court after the concerned person gave a notice in writing fully stating the cause of complaint. 14. All persons committed to the prison by the Supreme Court in the Patna Case were to be released, damages awarded against them by the Supreme Court to be paid by the Company. 15. There existed a grave doubt over the jurisdiction of Governor-General and Council’s legislative power in Bengal, Bihar and Orissa. Section 23 of the Act of 1781 empowered the Governor-General and Council to frame Regulations for the provincial courts and councils. Two-fold legislative power: one from the Regulating Act for Calcutta and under the Act of Settlement for Bengal, Bihar and Orissa.

Evaluation: 1. After 1781, the element of conflict between the Supreme Court and the mofussil courts in Bengal was removed. 2. Some difficulties that arose were resolved by the process of judicial interpretation. 3. The system continued to function smoothly for next eighty years and the Supreme Courts were also established in Bombay and Madras.

UNIT II LAW COMMISSIONS First Law Commission

1. The members of the Commission were to be approved by the court of Directors of the Company. The Directors appointed the persons of eminence and those who had practical knowledge. Five members were appointed under the Chairman, Lord Macaulay. The Governor General was appointed as the overall in charge of the Commission and given powers to assign the various subjects upon which the Commission was required to submit reports. 10

2. The terms of reference were: “to enquire into the jurisdiction, powers...of existing courts of justice...in the Indian territories and all existing forms of judicial procedure, and into the nature and operation of all laws, whether civil or criminal, written or customary, prevailing and in force”. The Commission was assigned the task of codification of penal law; the law applicable to non-Hindus and non-Muslims with regard to their various rights and codification of civil and criminal procedural law. 3. The Commission functioned from 1835 to 1848. It drafted the Indian Penal Code which was a masterpiece in substance and form. It compiled a Code comprehensive in nature covering all aspects of crime. It was submitted in 1837. This is the most constructive and significant contribution of the Commission. Its limitation was that in the absence of the codification of civil law and law of procedure, the codification of Penal Law alone could not have solved the problems as all laws are interconnected. 4. It most controversial recommendation was the Lex Loci Report. The term Lex loci means the law of the land. There was no law of the land of persons other than Hindu and Muslims in the Mofussil, while in the Presidency towns the English law was the law of the land for non Hindus and non Muslims. The Lex Loci Report of 1840 recommended that the English law be made law of the land in the mofussils for all except Muslims and Hindus. There were sharp differences of opinion and the Court of Directors did not pass any law in this regard. LEX LOCI REPORT

The Lex Loci report was a controversial measure recommended in the First Law Commission. The report was with regard to the law applicable to the non-Hindus and non-Muslims in the mofussil. Lex Loci looked into the issues of the civil rights of the non-Muslims and non Hindus. The two systems of courts, the Supreme Court and company courts applied different laws to the persons of Jewish, Parsi or others from the non majority communities. The Supreme Courts in the Presidency Towns applied the principles of British Law to persons belonging to other communities who were neither Hindus nor Muslims. But the Hindus and Muslims were subjected to their own personal laws in matters relating to succession, inheritance and other matters of the like nature. The same was the case in the company courts.

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The discrepancy emerged in the matters with regards to non Muslims and non Hindus. The Supreme Court applied the English laws to them, but the company courts were uncertain in their application. The case of Musleah vs Musleah is an indication of inconsistency between the Supreme Court and the company courts. Moreover with the gradual increase of population in the mofussil area and the settlement of the British and other persons belonging to other religions such as Christianity, Anglo Indians and Parsees in the mofussil, the company courts started applying the principle of justice, equity and good conscience, which basically implied application of English Law. This concept was applied where the judges were uncertain about the personal laws of the non-Hindus and non-Muslims. This resulted in confusion with regard to the application of law in disputed involving persons belonging to different religious groups. It resulted in ambiguity and legal delays.

The First Law Commission made a concerted study of such problems concerning nonHindus and non-Muslims residing in the mofussil and on 31 October 1840 presented the Lex Loci Report. The Commission recommended that the substantive law of England should be declared the law of the land in the mofussil area. The Commission justified the recommendation on the ground that the substantive law of England should be declared the law of the land as the Christians and other non-Muslima nd non-Hindu subjects are exempt from the operation of the Hindu and Muslim laws. The Hindu and Muslims laws could therefore not be considered lex loci and as not acceptable to all. Therefore, as regards non-Hindus and non-Muslims, India must be regarded as an uninhabited country colonized by the British subjects. The Commission further stated that “in every country there ought to be a law which is prima facie applicable to every person in it. The number of classes which, in any particular country, should be exempted from this law must always depend upon the circumstances of that country; but, be these classes few or many, small or large, the necessity for persons whose condition can not be defined beforehand, or who can not be brought by evidence within any oif the defined classes is desirable.” To be precise, for those religious sects and minorities, who do not fall within the majority religion, there was need for a certain uniform principle in the form of the universal law of the land and in this capacity the law commission recommended the introduction of the

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English law. The Commission asserted that the English law was already a Lex Loci Law in India. The main provisions of the draft Lex Loci Act were: 1. It would be declared that so much of the substantive law of England as was applicable to the situation of the people and was not inconsistent with any regulations or with any Acts passed by the Legislative Council of India should be taken to be the law of the land through out British India, except the places subject to the jurisdiction of Her Majesty’s Courts. 2. Nothin...