Evolution of Legal profession under British India

Evolution of Legal profession under British India

Administration system in Madras

Francis Day purchased land from a Hindu Raja for the East India Company in 1639. He then built a fortified factory there with the help of Englishmen and other Europeans; as a result, the area around the factory became known as While Town, and the village of Madras, Patnam, where the majority of the residents were Indians, became known as Black Town. Madras is the name given to the entire settlement, which includes both the white and black towns. Madras’ judicial system is separated into three levels.

First Stage 1639 – 1665

White town prior to 1665 Madras wasn’t the capital city and it was under Surat’s control. “Agent” was the title given to the person in charge of running the settlement with the assistance of the Council. the significant criminal cases that they forwarded to the Company’s English management for guidance. However, there were flaws. The agents’ and council’s judicial authority was ambiguous, illimitable, and subject to significant delays. It was Merchant. The judiciary and executive were not separate.

A court was established by the president of the Surat factory and the members of His Council to settle disputes involving Englishman interests in accordance with their own laws and customs.

Both civil and criminal cases would be decided by them.

Jury-dealt capital offences The judiciary and executive were not separate. The president and the people on his council who made the decisions and carried out the justice system were businessmen. They lacked even the most fundamental understanding of English law.

They decided the cases using their common sense and judgement. Furthermore, there was widespread corruption among the local judges. They didn’t ask for the law or justice.

Up until 1687, Surat was the principal trading hub. But after that, it became less significant because Bombay replaced Surat as the president and council’s administrative centre in 1687.

Black Town

The old court system was still in place, and the upkeep of Law and Order was the responsibility of the local headman known as Adigar or Adhikari. At the Choultry Court, Adigar gave the native justice. Choulby Court was a small cases court, according long-standing conventions. According to the Charter of 160, the Company had no authority to impose death sentences, and the agent in Council could only do so with the consent of a local sovereign. The agent in Council was tasked with hearing the appeals before the Choultry Court. Kannappa, an Indian native, was appointed Adigar but abused his position, which led to his dismissal from the position and the English government English-speaking firm employees and administrative staff were assigned to the Choultry court for the lawsuit.

Second Stage 1665-1683

Although the 1661 charter stipulated that the governor and council may resolve any dispute in accordance with English law, nothing was done until the Dawes case in 1665. One Mrs. Ascentia Dawes was accused of killing her slave girl in 1665, and the Agent-in-Council forwarded the case to the Company’s authority in that year.

Britain for guidance. After elevating the standing of the agent and the council of the Madras plant to try Mrs. Dawes with the aid of the jury, an unexpected not-guilty verdict was delivered, and as a result, Mrs. Dawes was found not guilty. The entire court system was reorganised later in 1678. In both communities, the court system was improved.

The Governor and Council decided in 1678 that a jury of twelve men would assist them in making decisions in civil and criminal issues while the court met twice a week. The High Court of Judicature was the name of the court. This court reviewed appeals against the Choultry Court’s rulings and rendered significant decisions in both civil and criminal cases.

White Town

The High Court of Judicature was established as the court of Governor and Council. It was intended to consider all cases involving residents of both towns with the assistance of a jury as well as appeals from the Choultry Court. Cases were decided in accordance with English law. Two weekly court meetings were scheduled.

Black Town 

Additionally, the Choultry Court was reorganised. The judges’ roster was expanded from two to three. They were all Englishmen, the judges. At least two of them had to spend two days a week in court. Petty criminal cases could be heard in the Choultry Court. Additionally, it had the authority to hear matters with a value up to 50 pagodas and those with a higher value with the parties’ agreement.

Third Stage 1683-1726 { Admirality court }

A Charter was published in 1683 by King Charles II. It gave the Company the authority to set up admiralty courts in India. All traders who committed various offences on the high seas were able to have their cases heard by the Court of Admiralty. All cases involving marine and mercantile transactions were subject to hearing and decision by the court. Additionally, the court was given the authority to handle any matters involving ship forfeiture, piracy, trespassing, injuries, and wrongdoings. In the mission of administering justice, it was stated that the court would be governed by the laws and conventions of merchants as well as the principles of equity and good conscience.

James II reiterated the clause from the Charter of 1683 in a charter he issued in 1686. When the court of admiralty was created in Madras on October 10th, 1686, John Grey was chosen as the judge, and on July 22nd, 1687, two further Englishmen were chosen to serve as his assistants. Sir John Biggs, a professional lawyer with knowledge of civil law, was chosen to serve as the court’s Judge Advocate in Chief Judge.

After then, the Governor and Council stopped acting as a court and gave up their judicial duties. The Admiralty Court’s jurisdiction extended beyond mercantile and maritime cases. Additionally, both civil and criminal cases were decided. Additionally, appeals from the Mayor’s Court were heard. A General Court of the Settlement was created as a result. The Admiralty court was operating normally up until 1704, but after that it stopped holding regular sessions and eventually vanished, and its authority was given to the Governor and Council.

Mayors Court

The Mayor’s Court was a part of the Madras Corporation, which was founded in the year 1687 by Company. To fund the repair of the city wall, the Madras administration imposed a house tax on residents of Madras City in 1686. However, the Madras and local population did not pay taxes, which caused problems and difficulties for the company to collect taxes. As a result, the company decided that in order to make tax collection simple, a body composed of English men and the local Indian population should be formed. This will make it simple for the company officials to collect taxes.

The corporation, which comprises of a Mayor, 12 Aldermen, and 60 to 120 Burgesses, was established on September 29, 1968. It was determined that retiring mayors might be re-elected by aldermen and burgesses, and that a new mayor would be chosen from among the aldermen each year.

Only Englishmen are eligible to become mayor, and the Alderman and Burgesses have the authority to oust him if he is unable to carry out his duties. The Alderman indirectly holds the office for their entire lives as long as they reside in Madras City. If the Alderman didn’t do a good job, the Mayor, Burgesses, has the authority to remove him from office as well.

The charter named 29 Burgesses, and the Mayor and Alderman then named the remaining Burgesses. The caste head was chosen as one of the first 60 Burgesses.

The Mayor and three Senior Aldermen were required to serve as the justice of the peace under the terms of the first corporation. A court of record that had the power to hear both civil and criminal cases was to be established by the mayor and aldermen. Mayors court was the name of this court.

The Choultry Court

The Governor acknowledged and authorised the continuation of the ancient Choultry Court. Three judges were appointed; two of them had to preside over the court’s trial of cases. Each week, the Court convened on two days. The court had the authority to hear civil matters worth up to 50 Pagodas (one Pagoda was equal to three Rupees) and minor criminal offences. Choultry Court appeals may be heard by the High Court of Judicature.

Conclusion: At this early point, the general picture of Madras’s administration of justice was not favourable. There were numerous problems with the system. These are the ones that stand out the most:

1. The lack of an effective legal system.
2. Laws were ambiguous; neither the courts nor the populace knew which laws applied to them or their problems.
3. The jails don’t have enough amenities.

The prisoners endured inhumane living conditions.

4. Unfair trial. The English standards for a fair trial, including the notions of natural justice and the accused’s right to the benefit of the doubt, were not followed.
5. Severe Penalties – Typically, the Penalties were barbaric and brutal. They were founded on a conflicted deterrence and prevention theory.

Administration in Bombay

The island of Bombay was purchased by the Portuguese in 1534 from the King of Gujarat, who had held it since 1661. As a dowry for his sister Catherine’s marriage to the British King, Portuguese King Alfonsus VI gave the island to Charles II. In exchange for a meagre yearly fee of 10 pounds, Charles II handed it to the East India Company in 1668. The Island of Bombay’s judicial system developed in three stages prior to 1726:

• First Stage – (1668 – 1683)
• Second Stage – (1683 – 1690)
• Third Stage – (1781 – 1726)

First Stage 1668 to 1683

Two judicial systems were developed during this time. In 1670, the first of them was founded. According to this, Bombay was divided into two divisions. Every division had a court with five judges on it. The President of the Court served as the Custom Officer of the Division. Indians made up a portion of the judges in these courts.

The jurisdiction of this court included minor offences including thefts involving up to five xeraphins in value and other matters of a like nature. The civil cases that were brought before this court were also little in scope. For cases involving more than 200 xeraphins, it lacked authority. In the court of the Deputy-Governor and Council, appeals against this court’s decisions may be made.

In all civil and criminal cases, the Deputy-Governor and Council served as a higher court with original and appellate jurisdiction. It had the authority to consider civil cases with a value greater than 200 xeraphins. This court used a jury to help it try all the major offences that the Divisional Court was unable to hear.

When it was first created in 1670, the legal system was quite simple and undeveloped. The distinction between the executive and the judiciary was not made. Additionally, there was no provision in the courts for a lawyer member. The Deputy-Governor made numerous requests to the company for an individual with legal training, but it paid no attention.

A government declaration was released on August 1st, 1672. By making this declaration, The island’s previous Portuguese law was superseded by English law by means of this proclamation. The English law took over as the island’s supreme law at that point. A new judicial system with three different sorts of courts was also formed by this proclamation.

Wilcox served as the judge of the Court of Judicature, which was formed to hear both civil and criminal issues. The Court also had authority over issues involving wills and probate. The court met once a week to hear civil cases. The jury assisted in deciding every case.

In civil proceedings, there was also a court fee assessed at a rate of 5%. The court once a month convened to hear criminal matters.

Court of Conscience—Wilcox presided over this court as well, and it was given the nickname Court of Conscience because it delivered swift and conclusive justice. It only heard trivial cases and decided civil disputes with a maximum value of 20 xeraphins.

The Council and the Deputy Governor served as the court of appeal. They heard appeals from all of the court of jurisdiction’s rulings. The 1672 plan that formed the court system was successful. It was quick, affordable, and effective.

Its primary flaw was that the judges lacked the independence necessary for effective administration of justice.

Second Stage 1684-1693

A court of admiralty was established in Bombay as part of the new judicial administration system, modelling it after the court of admirality that had been founded in Madras as part of the charter of 1683. The earlier Charter of 1683 issued by Charles II gave the Company the power to create courts. The Charter provided for the establishment of Courts at such locations as the Company may direct for Maritime causes of all kinds, including all cases of trespasses, injuries, and wrongs done or committed on the high seas or in Bombay or its neighbouring territory. Each Court was to be presided over by a learned judge in civil law assisted by two persons chosen by the company.

Such Courts were supposed to render decisions in accordance with the laws and conventions of merchants, as well as the standards of equity and good conscience. As a result, an Admiralty Court was founded in 1684 at Bombay. In addition, Dr. St. John was permitted to serve as the Court of Judicature’s Chief Justice. The Admiralty Court’s power was insufficient to handle all other civil business, therefore the Court of Judicature was once more established.

The island of Bombay was conquered by Siddi Yakub Admiral Emperor in 1690, which led to the dissolution of Bombay’s judicial system. In fact, the administration of justice in Bombay was all but paralysed from 1690 to 1718. Therefore, the years 1690 to 1718 are considered a dark time in Bombay’s legal history.

Third Stage 1718-1726

On March 25, 1718, Governor Charles Boone restored and established a court of justice, ushering in a new era in Bombay’s judicial history. It was created by the Governor and Council, and the Company authorities later gave their approval. There were ten judges in the 1718 court of justice. The Chief Justice and five judges will all be Englishmen, per special arrangement. The remaining four had to be Indian and have to represent four different groups: Parsis, Muslims, Portuguese-Christians, and Hindus.

All English judges had standing above Indian judges and were also all members of the Governor’s Council. The court had a quorum of three English judges. Once a week, the Court convened. Indian judges, commonly referred to as “Black Justice,” were added primarily to improve the effectiveness of the Court. They served mostly as assessors or the English justices’ aides. They don’t seem to have had the same standing as English judges.

The Court of 1718 was given extensive authority. It handled all civil and criminal cases in accordance with the law, equity, and good conscience. Additionally, it was governed by the laws and regulations that the Company periodically established. The Court has to take the Indians’ traditions and practises into proper regard. In addition to having authority over probate and administrative issues, it was also given permission to serve as a Registration House for the recording of all sales involving real estate, including homes, lands, and tenements.

In cases where the amount at issue was Rs. 100 or more, an appeal from the Court of Judicature’s ruling was permitted to the Court of Governor and Council. After the verdict was delivered to the Chief Justice of the Court of Judicature, a notice of intent to appeal must be given within 48 hours. The Court set moderate costs for a variety of purposes. A Rs. 5 filing fee was required for each appeal.

Conclusion: At least insofar as Indian judges were permitted to participate in the administration of Indian judges, the system formed in 1718 was an improvement over the former system. The court of 1718 established a slight separation between the executive and the judiciary, but the executive, including the Governor and Council, continued to meddle with the judiciary’s independence. The legal system was lacking in many ways in this regard. The aforementioned flaws violated the rules of natural justice and the fundamentals of the law.

Administration in Calcutta

On August 24, 1660, a company servant named Job Charnock lay the cornerstone for the British settlement in Calcutta. It all started with the construction of a plant in Sutanati on the banks of the Hugli River. The East India Company received the Zamindari of villages in Calcutta, Sutanati, and Govindapur for 1195 rupees annually in 1668 from Shan, the grandson of Aurangzeb, and the Subedar of Bengal. Calcutta was made a presidency town in December 1699, and a governor was chosen to run the community. As a Zamindar, the firm had all the authority available to Zamindars at the period.

Bangladeshi Zamindar In the Mughal Empire, zamindars had the authority to administer justice while also collecting taxes and upholding law and order in the zamindari region or village. At that time, there were Kaziz Courts in every District, Parganah, and Village.

They dealt with both civil and criminal cases. Panchayats in villages often handled all issues. Because everyone knew one another and there was no organisation at the period, the Moghul Kings paid little attention to the judicial system, which made it uncomplicated.

The Kazi was chosen as the highest bidder. Justice was bought because there was so much corruption and Kazi never received pay, so the court fined the criminal and made money. After then, demand payment from the complainant in exchange for providing justice. The Nawab heard appeals from the other zamindars who had received death sentences, but the business never did. The Governor and Council heard the Collectors Court case.

Collector at that time possessed all the authority in Calcutta up to the year 1727. The new structure of the Calcutta presidency was introduced with the Charter of 1726. The zamindar and the company had previously granted authority, but the Charter of 1726 was a Royal Charter.

Mayors Court

The Mayor’s Courts’ authority was reduced by the Charter of 1726, which also gave the local Governor in Council absolute power. Mayor’s Court used to be an official court having both criminal and civil jurisdiction. It dealt with crimes that carried a fine, an extended sentence, or other physical harm. In both civil and criminal proceedings, an appeals right to the Court of Admiralty was provided. The Mayor’s court met once every two weeks, and a quorum was made up of the Mayor and two Aldermen. It appears that the jury system was used in the criminal proceedings at Mayor’s court. However, each corporation’s mayor and alderman served as the court under the terms of the Charter of 1726.

Features are as follow –

-The charter that King George I issued in 1726.

-The charter created civil and criminal courts in the presidency towns, which were under the British crown rather than the company.

-One benefit of having royal courts in India was that their rulings had the same weight as those from English courts.

-The charter established a procedure for appeals from Indian courts to the Privy Council that England.

Thus, the English legal system was introduced to India. English legal principles were used to settle the arguments.

-Indian law started to be codified in 1833.

A local legislature was also constituted under the charter in each presidency town.

• The Charter of 1726 marks a turning point in the legal history of the Indians.

However, there is still no separation of powers between the government and the judiciary, and justice is still dispensed by unqualified judges.

Position of courts prior to and following 1726. Because the Mayors court was established by the Crown, its rulings were respected in England. It was different in the case of the earlier, by the company-created court.

Provisions of the court

-Each of the three presidential terms required a corporation with a mayor and nine aldermen.

-Of the nine aldermen, two may be subjects of any prince or state with good ties to the United Kingdom. The remainder were to be British citizens by birth.

-The mayor was appointed for a one-year term and was required to serve another year as an alderman.

-Aldermen were appointed for life, and in the event of a vacancy, the mayor and the surviving aldermen chose a replacement from among the town’s residents.

-The outgoing mayor and the alderman were to choose the next mayor.

-The governor and council had the authority to dismiss an alderman on some justifiable grounds, subject to a King in Council appeal.

-The goal was to liberate the corporation from the executive’s authority and make it autonomous.

Civil Jurisdiction

• The mayor and aldermen were to form the mayor’s court.
• The court’s quorum was to be three—the mayor or senior alderman and two other aldermen.
• All civil suits arising within the town and its subordinate factories were to be heard and tried by the court.
• Within 14 days, the first appeal would be heard by the governor and council. In all cases involving 1000 pagodas or more, further appeal lay with the King in council ( then currency of Madras)
• For the first time, a right of appeal to the King-in-Council from decisions of Indian courts was granted.
• It was a court of record with the authority to punish for contempt.
• Had testamentary jurisdiction, could grant probates of deceased persons’ wills.
• A sheriff was appointed by the governor and council each year and served as the chief of police.
• The civil litigation procedure was intriguing. A warrant may be issued by the court, bail may be granted, the defendant may be detained in custody, imprisoned until the judgement is satisfied, and property may be seized and sold.

Criminal Jurisdiction

• Belongs to the governor and five senior council members.
• They were referred to as justices of the peace.
• Arrest and punish individuals.
• A court of record was to be formed by three justices of the peace.
• Sessions were held four times a year to try and punish every crime except high treason.
• Trials were conducted with the assistance of a grand jury and a petty jury.
• The English criminal justice system’s technical forms and procedures were introduced.

Reforms Made by Lord Cornwallis

Lord Cornwallis’s Governor-Generalship (1786–1793) was a remarkable and creative period in Indian legal history. He completely reorganised the legal system. He established the principle of legal administration for the first time. He instituted significant and far-reaching reforms in judicial administration, some of which are still in effect today. Cornwallis implemented the reforms in three stages, in 1787, 1790, and 1793.

Judicial Plan 1787

Lord Cornwallis introduced his first plan in 1787, on the instructions of the Court of Directors, to combine revenue and judicial functions in a single authority known as the Collector. As a result, the Collector collected revenue and resolved revenue disputes. This was done in order to avoid a conflict of jurisdiction and to save money. The revenue court was known as ‘Mal Adalat.’ The Collector’s decisions were appealed to the Board of Revenue in Calcutta, and a second appeal was made to the Governor-General and Council. Thus, in revenue cases, there was provision for two appeals.

Diwani Adalat, with the Collector as the sole judge, was established to settle civil disputes. The Collector was also granted magisterial authority. As Magistrate, he had the authority to arrest criminals, hear evidence against them, and refer the case to the criminal court for trial. In minor offences, he was given the authority to imprison for 15 days.

The plan was a step backward in the administration of justice. This plan undid whatever good Warren Hastings had done by separating revenue and judicial functions. In civil cases, if the subject matter of the suit exceeded Rupees one thousand, an appeal from Mofussil Diwani could be preferred in the Sardar Diwani Adalat, and in cases exceeding 5000, a further appeal to the King in Council. The Governor-General and all members of his council make up the Sadar Adalat, which is assisted by the Chief Kazi, Chief Mufti, and two Moulvis for Muslim law and a Hindu Pandit for Hindu law.

Judicial Plan 1790

Prior to the 1790 reforms, the administration of criminal justice had several flaws.

(1) Muslim officers were completely entrusted with the criminal administration of justice. They abused their powers because they were not properly controlled, for example, by accepting bribes.

(2) The Moffussil Faujdari Adalats possessed unrestricted power, and in the absence of proper oversight, these courts became autocratic.

(3) There was no relationship between the gravity of the crime and the punishment imposed. The courts were given complete authority to impose whatever punishment they saw fit. As a result, even in the case of murder, the perpetrator went unpunished.

(4) In many cases, Zamindars provided protection to the criminals, and through their influence over Muslim judges, they were able to get the criminals to flee the clutches of the judiciary. Crime was encouraged in this way.

(5) The Nawab, who had control over the criminal justice administration, was extremely careless.

Lord Cornwallis distributed a questionnaire to all magistrates in order to ascertain their perspectives and the current state of the criminal justice system. The magistrates’ responses painted a very negative picture of the then-existing system. The name of Nawab was removed from the criminal justice administration as part of the 1790 reforms. The administration was delegated to Company servants, who would be assisted by Muslim law enforcement officers.

In the Moffusil area, three types of courts were established:

(1) The District Magistrate’s Court functioned as before, according to the 1787 Plan.

(2) Circuit Courts—A moving court that visited each district twice a year to try people charged by the Magistrate. It was made up of two Company servants who were assisted by Kazi and Mufti. The salaries of court officers were raised in order to reduce their desire for bribes.

(3) Sadar Nizamat Adalat-It was transferred to Calcutta and its judges were the Governor-General and Council, who were assisted by Muslim law officers. The 1790 system worked extremely well; the only flaw revealed in the system was that the Courts of Circuit were called upon to handle a massive amount of work.

As a result, Cornwallis empowered Magistrates to impose punishment in cases punishable by up to one month’s imprisonment in 1792.

This relieved the strain on Circuit Courts. Lord Cornwallis also instituted some humanitarian reforms, such as provisions for prosecutors and witnesses who appeared in court, the repeal of the provision for attachment of property, and provisions for the rehabilitation of criminals after their release from prison.

Judicial Plan 1793

The 1787 scheme was riddled with flaws. The Collector operated almost entirely independently of the above. He quickly became an autocrat and neglected his judicial duties. Actually, his main job was to collect the land revenue that would determine his future promotions and pay.

The Mal Adalat’s disputes were mostly about collecting land revenue, which meant that the Collector was a judge in his own case. The scheme was convenient, simple, and economical from an administrative standpoint, but it was hardly conducive to securing people’s liberty, protecting property, and promoting their general welfare.

The scheme’s fundamental or general characteristics are as follows:

(1) Executive and judicial separation: The Collector was to be solely responsible for revenue collection. The Diwani adalats were given the authority to administer civil justice.

(2) Judicial control over the executive: Collectors and all executive officials were made accountable to Diwani adalats for their official acts. For violations of the Regulations, they would be personally liable and could be required to pay damages to the injured party. Thus, for the first time, the people were granted the right to seek redress from Company officers who had wronged them.

(3) Liability of the government In the Diwani adalat, anyone could sue the government for damages in the same way that they could sue a private person.

(4) Diwani adalats and British subjects Until recently, natives could only seek redress against British subjects in the Supreme Court of Calcutta. Because of their poverty and long distance, natives had a difficult time reaching the Supreme Court. To avoid this, the Diwani adalat was given the authority not to allow any British subject to live more than 10 miles from Calcutta unless he executed a bond stating that he would be subject to the jurisdiction of the court up to the value of Rs. 500.

Judicial Reform of Sir John Shore

In 1793, Sir John Shore succeeded Lord Cornwallis as Governor-General of India. John Shore made some changes to the existing judicial system at the time.

Changes in 1794

1. Increased Registrar’s Court Authority- The Registrar was summoned three times a week to hear cases up to the value of two hundred rupees referred to him by the judge of the Diwani Adalat. The Registrar’s decision was final up to rupees twenty-five. In such cases, however, the judge of the Diwani Adalat may intervene if he believes the decision is incorrect and unjust. If the value of a case exceeded Rs. 25, an appeal could be taken directly to the Provincial Courts of Appeal.
2. Collectors were permitted Partial Judicial Powers – The Diwani Adalat was given the authority to refer revenue cases involving rent adjustment to the Collector for the purpose of preparing a report and submitting it to the Diwani Adalat for decision. However, any account pertaining to suits in which the Collector, any of his officers, servants, or the Government were parties could not be referred to the Collectors. Thus, the Collectors, who had been stripped of all judicial functions under the 1793 scheme, were given minor judicial work once more. He was given the authority to rule on revenue cases involving account adjustments for security and reporting. This provision saved the Diwani judge time.

Changes in 1795

1. Appeal from the Court of Registrar – According to the 1795 scheme, appeals from the decisions of the Courts of Registrar were to be taken to the Court of Mofussil Diwani Adalat rather than the Provincial Court of Appeal. Furthermore, instead of two appeals, only one could be preferred.
2. Appeal from the Court of Munsiff – Under the 1795 scheme, the appeal from the Munsiff Court was directed to Mofussil Diwani Adalt, whose decision was final, and appeals to the Provincial Court of Appeal were prohibited. As a result, the Mofussil Diwani Adalat was only allowed to file one appeal from the Court of Munsif’s decision.
3. The Registrar’s Upkeep of a Register –

According to the 1795 arrangement, the registrar was to keep a register with information on how cases were resolved and those that were past due. The purpose of this clause was to tighten the Sardar Diwani Adalat’s grip on the lower courts.

4. Restoration of the Court Fee System –

The 1795 system established the scales by which litigants were to pay court fees in order to discourage litigation. The fee was imposed not only on pending lawsuits but also on older cases still awaiting a court ruling. As a result, numerous ongoing lawsuits were dismissed for failing to pay court costs.

5. Adalat System Installation in Benaras –

Sir John Shore established the Adalat system in the Province of Banaras with the support of the Raja of Banaras in 1795. The province of Banaras was divided into four districts. In each district, a Mofussil Diwani Adalat was established. At Banaras, a Provincial Court of Appeal was established. This Provincial Court of Appeal was also to serve as the Court of Circuit for criminal offence trials, with appeals to Sardar Nizamat Adalat in Calcutta. The Registrars’ and Munsifs’ courts were established. Criminal law and justice were to be administered along Bengali lines. The jurisdiction of the Calcutta Sardar Adalats was extended to Banaras as well.

The Indian Bar Council Act , 1926

The Indian Bar Councils Act, 1926 was enacted to provide for the constitution and incorporation of bar Councils for certain Courts in British India, to confer powers and impose duties on such bar Councils, and to consolidate and attend the law relating to legal practitioners entitled to practise in such courts, in order to materialise the Chamier Committee’s recommendations. The main goals of the Act were to unify the various grades of legal practitioners and to give the bars attached to the various Courts self-government.

Features are as follows –

The Act applied throughout British India, but it was initially only to the High Courts of Calcutta, Madras, Bombay, Allahabad, and Patna. The Act could be applied to any other High Court that the “Governor-General in Council may declare to be High to which the Act applied by notification in the Official Gazette.” Sections 3 to 7 of the Act dealt with the formation and incorporation of a Bar Council as a corporate body, as well as its powers to make by-laws. Each High Court was to have its own Bar Council.

A bar council was to have the following 15 members: Four nominees for the position of advocate general are made by the High Court, of whom no more than two may be judges; the remaining ten members are chosen by the High Court’s attorneys. A bar council’s chairman and vice-chairman were to be elected, but in Madras, Calcutta, and Bombay, the advocate general was to serve as the bar council’s ex-officio chairman.

Any High Court advocate found guilty of professional or other misconduct may receive a reprimand, suspension, or removal from the bar. The High Court has the authority to send any matter in which it had reason to believe that one of these Advocates had engaged in misconduct on its own initiative.

The High Courts still had the authority to appoint advocates, and the Bar Councils’ role was strictly advisory. The High Court had to approve any regulations that a Bar Council created. The Bar Council’s function is primarily consultative; the High Court possessed actual disciplinary authority over the Advocates. Only when the High Court submitted the case to the Bar Council for review could it look into an allegation of professional misconduct, and even then the Bar Council’s conclusions were not legally binding on the High Court.

The Original Sides of the Calcutta and Bombay High Courts were in no way impacted by the Act. The enrolment of the Attorneys and the disciplinary power over them continued to be vested in the High Courts under their separate Letters Patents because the Attorneys of the Calcutta and Bombay Courts were not affected by this Act in any way.

Author: Harsh Srivastava,
Second Year /The University of Petroleum & Energy Studies