Nirma University of science and technology Institute Of Law B.A. LL.B.(Hons.) Legal and constitutional History of India "o#ic!

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(udicial )eforms *y Lord +ornwallis

The Governorship Of Cornwallis was extended from 1786 to 1793 Constituted a very remar a!le and "i#hly $reative period in the %udi$ial system of &ndia "e introdu$ed $han#es in the 'udi$ial system thri$e in1787(179)(1793 %udi$ial *eforms !y +ord Cornwallis "e thorou#hly reor#ani,ed the $ivil and $riminal 'udi$ial system in -en#al( -ihar and Orissa .emand raised for the mer#er of revenue and 'udi$ial fun$tions %ohn /hore too leadership to !rin# this mer#er %udi$ial *eforms !y +ord Cornwallis 0pril 11(1786 the Company dire$ted Cornwallis to vest in one person the revenue( 'udi$ial and ma#isterial fun$tions 0 step with the purpose of promotin# simpli$ity( 'usti$e and e$onomy +ornwallis,s #lan of &-.-

The ey note of the plan was e$onomy Tried to a$hieve purity of administration !y in$reasin# the salaries of the $olle$tors 2xistin# 36 distri$ts were reor#ani,ed and and the num!er of distri$ts were redu$ed to 13 Colle$tor 3an 2n#lishman3in $har#e of ea$h distri$ts Colle$tor was to $olle$t revenue and de$ide $ases and matter related to it Colle$tor was to a$t as 'ud#e in 4ofussil .iwani 0dalat of distri$t(

"e was entrusted with ma#isterial power in distri$ts Colle$tor was re5uired to eep his two fun$tions separate from ea$h nown as 4al

other "is revenue fun$tions in the revenue $ourt was 0dalat

6rom Colle$tor7s revenue $ourts first appeal to the -oard of *evenue at Cal$utta and final appeal to the G8G8in $oun$il 4ofussil .iwani 0dalat $ould de$ide $ivil $ases( $laims $on$ernin# su$$ession( !oundary disputes of ,amindars in de$idin# whi$h $olle$tor had to pay due respe$t to the prevailin# lo$al $ustoms and usa#es 0ppeal from 4ofussil .iwani adalat to /adar .iwani 0dalat in matters of more than *s 1))) and where valuation of suit was more than 9))) pound further appeal to the in# in Coun$il in 2n#land /adar .iwani 0dalat $onsisted of G8G and $oun$il and assisted !y the :ative +aw Offi$ers 0t distri$t level $olle$tor was assisted !y the *e#istrar;appointed in ea$h distri$t< *e#istrar $ould try petty $ivil $ases up to *s 1))=these de$rees re5uired to !e $ountersi#ned !y the $olle$tor 0s a ma#istrate $olle$tor $ould arrest( try and punish $riminals in petty offen$es &n $ase of #raver offen$es( where imprisonment was expe$ted of more than 19 days the arrested a$$used was sent to nearest 4ofussil :i,amat 0dalat 0ll 2uropeans who were not -ritish /u!'e$ts were pla$ed on same footin# as the &ndians and were tried in 4ofussil :i,amat 0dalat /efect0 %usti$e was made su!servient to the needs of revenue $olle$tion

)eorgani1ation of +riminal (udicature

ituations *efore &-23 %ails were over$rowded Corruption was rampant

 .e#radation of 'usti$e> The administration of $riminal 'usti$e was left to the 4uslim law offi$ers8 The mofussil fau,dari adalat was manned !y mufti( maulvi and a,is8 The /adar :i,amat 0dalat was presided over !y *e,a ?han as the :ai! :awa! and he had total authority to appoint and remove the $riminal 'ud#es and he was not responsi!le to any!ody8 The $ontrol of Governor General and Coun$il was only nominal and the orders and senten$es passed !y the /adar :i,amat 0dalat were final and sometimes were exe$uted without informin# to the *em!ran$er8 /ometimes the details of the senten$e were reported to the *emem!ran$er !ut the #rounds on whi$h the spe$ifi$ punishment was #iven were not reported to him8 The salaries of these offi$ers were paid out of the allowan$es #iven to the :awa! and $onse5uently their salaries were very low and mea#er whi$h led them to ma e $orruption8 Too mu$h power was #iven to the mofussil ni,amat 0dalat and there was no ade5uate supervision over it8 They $ould pronoun$e final orders ex$ept $ases involvin# life or lim! in whi$h /adar :i,amat@s order would !e final8 Criminal pro$eedin#s were tardy and dilatory /ometimes delay o$$urred due to the load of wor and sometimes due to the diffi$ulty of pro$urin# defense e or prose$ution witnesses8 /adar :i,amat 0dalat@s pro$eedin#s were extremely $onfusin#( $haoti$ and it too lon# time to dispose of the pendin# $ases whi$h were sent from the mofussil ni,amat $ourts8 4unishments awarded Aunishments awarded in many $ases appeared to have no relation to the nature of the offen$es8 There was no measure or standard for awardin# punishments and the merits of the $ase were hardly $onsidered in awardin# the senten$e8 5isa##lication of law &nade5uate punishments were awarded to hardened $riminals and sometimes severe punishments were #iven to the inno$ent persons or to those who had $ommitted less serious $rimes8

 &n 179) +ord Cornwallis addressed a 5uestionnaire to the several ma#istrates invitin# their $omments on the prevailin# $riminal 'udi$ial system8 The ma#istrates@ replies reveal the evils of the $riminal 'usti$e system and Cornwallis reali,ed that $ertain vital $han#es were re5uired in the system of $riminal 'usti$e8 "e dia#nosed two important sour$es of these evils=;i< defe$ts in the $onstitution of the $riminal $ourts ;ii< the #ross defe$ts in the 4uslim law of Crimes8 Cornwallis resolved to a!olish the authority of :awa! over the $riminal 'udi$ature and to transfer the administration of $riminal 'usti$e from 4uslim +aw offi$ers to the Company@s le#al servants8

cheme of &-23! )eforms in criminal 6udicature &. "hree lim*s0 /adar :i,amat 0dalat ; presided !y G8G8 and $oun$il=assisted !y 4uslim law offi$ers and they were 'ust to expound the law< The adalat was to meet on$e in a wee ( and re5uired to maintain re#ular diary of all its pro$eedin#s8 Court of Cir$uit 0t lowest run# 3 ma#istrates in the distri$ts 18 )eorgani1ation of lower courts 4ofussil fo,dari adalats were a!olished and four Courts of Cir$uit were esta!lilshed8

0ll distri$ts were divided into four divisions Aatna( Cal$utta( 4urshida!ad( .a$$a8 +ourt of +ircuit= Consisted of two servants of the Company &n ea$h division :ot stationary !ut movin# $ourt( went from distri$t to distri$t within the division to try all $riminal $ases ;visit ea$h distri$t within its 'urisdi$tion twi$e a year to dispose of $riminal $ases awaitin# trial< Two #aol deliveries annually 0ssisted !y 4uslim law offi$ers and se$urity of tenure was #iven to them &n $ase of death and perpetual imprisonment the de$ision of the /adar :i,amat 0dalat would !e final 7 +ollector,s 8unctions Colle$tor in ea$h distri$t would a$t as 4a#istrate( "is 6un$tions> to arrest the a$$used and hold in5uiry in to the matter( &f the Offen$e was petty= he $ould award punishments &f the offen$e was serious( and pendin# the arrival of the $ourt of $ir$uit it $an $ommit the a$$used to the prison or release him on !ail 2very month he was to ma e report to the /adar :i,amat 0dalat 9 +rimes *y British u*6ects Arovisions were same as in 1787 )eforms of &-27

&. e#aration of :;ecutive and (udiciary *e#ulation && of 1793 a!olished the mal adalats and transferred the suits tria!le there to 4ofussil 0dalats Colle$tor was made responsi!le only for revenue $olle$tion Colle$tors was deprived of 'udi$ial powers *evenue $ases !e$ame tria!le li e ordinary $ases <. :;ecutive su*6ected to 6udicial control

*e#ulation &&& made the $olle$tors and all exe$utive offi$ers amena!le to the diwani adalats for their offi$ial a$ts8 6ormerly if any oppressive a$t was $ommitted !y the exe$utive offi$ers( the in'ured party had to #o to Cal$utta to ma e petition to the Government8 These petitions were sent !a$ to the $olle$tor who was supposed to ma e in5uiry !ut in fa$t he did not ma e any honest in5uiry8 Cornwallis too positive step !y ma in# the offi$ers su!'e$t to the 'udi$ial $ontrol and in this way esta!lished the soverei#nty and rule of law8 7. uits against government The reforms $onferred on the people the ri#ht to !rin# suits a#ainst the Government in diwani adalats so all suits !etween the #overnment and the private individual would !e de$ided in the diwani adalats8 9. British su*6ects and +om#any,s adalats -ritish su!'e$ts residin# in interior areas !eyond Cal$utta $ould re$over their $laims a#ainst &ndian inha!itants !y resortin# to the lo$al diwani adalats !ut &ndian inha!itants had no su$h powers( they had to #o to Cal$utta whi$h was very expensive and time $onsumin#8 The reforms of 1793 empowered diwani $ourts not to allow any -ritish su!'e$ts to reside at a distan$e #reater than 1) miles from Cal$utta unless they exe$uted a !ond renderin# themselves amena!le to the 'urisdi$tion of diwani adalats in all $ivil $ases instituted !y &ndians up to sum involvin# 9)) rupees8 $. /iwani Adalats reorgani1ed *e#ulation &&& of 1793 reor#anised the .iwani adalats 8 &n ea$h distri$t=and in ea$h of the three $ities of Aatna( 4urshida!ad and .a$$a a .iwani $ourt was esta!lished8 &t was superintended !y Company@s servants8 &t was authori,ed to ta e $o#ni,an$e of $ivil( revenue and $riminal $ases Aro$eedin#s and de$ree of the $ourt would !e made in open $ourt Court would follow rules and re#ulations =. +ourt of A##eal 6ormerly appeal from mofussil diwani adalts were made su!ordinate to /adar diwani adalat( whi$h was at far distan$e( the pro$ess was expensive and time $onsumin#8 To remove this diffi$ulty a new provision was made in the reform 3four $ourts of appeal were esta!lished at Aatana( .a$$a( Cal$utta(

4urshida!ad B ea$h $onsisted of three servants of the Company of whom two would ma e 5uorum8 2a$h $ourt had followin# fun$tions> To try $ivil suits sent to them !y the /adar diwani adalat or #overnment( To try ori#inal suit or $omplaint whi$h was re'e$ted !y the mofoussil diwani adalat To re$eive $har#es a#ainst 'ud#es of diwani adalats and forward the same to /adar adalats To hear appeals from all diwani adalats if filed within three months These Courts were nown as Arovin$ial Courts of 0ppeal and they would supervise all diwani adalats8 -. adar /iwani Adalat "i#hest Court G8G8 and mem!ers of Coun$il were 'ud#es "ear appeals from Court of 0ppeal involvin# su!'e$t matter of more than 1)))rupees 6urther appeal was allowed to the ?in# in Coun$il in Cases involvin# sum of 9))) pound or more /upervise and inspe$t lower adalats .. u*ordinate +ivil (udicature To save the mofissil adalats from in$reasin# wor load and speedy disposal of $ases one provision was made of re#istrar8 *e#istrar@s $ourt was empowered to de$ide suits up to *s8 1)) in ea$h distri$t and the 'ud#e of the mofussil $ourt must $ountersi#n the order of the re#istrar8 The re#istrar would !e a $ompany@s servant &n ea$h distri$t /adar 0mins or $ommissioners nown as 4unsiffs were appointed to de$ide Cases up to *s8 9) Native Law officers The personal laws of "indus and 4ohammedans were appli$a!le in $ases relatin# to marria#e( inheritan$e( $aste( reli#ious usa#es and institutions8 The :ative law offi$ers were appointed !y G8G8 to assist the Court and to expound the law 2. +ourt 8ees were a*olished

The fees imposed in the plan of 1787 were a!olished8 &3. )eforms in +riminal (udicature The ma#isterial powers of the $olle$tor were ta en away and the 'ud#es of diwani adalats were empowered to exer$ise this 'urisdi$tion8 The Arovin$ial $ourts and the $ourts of $ir$uits were mer#ed8 &&. Legal 4rofession -y re#ulation C&& of 1793 the profession of law was $reated and or#ani,ed in &ndia8 &<. Uniform #attern of )egulations /o far re#ulations were issued without any uniform pattern( !ut this reform provided that hen$eforth *e#ulations would $ontain pream!le whi$h will state the reasons for ena$tin# the re#ulations( every re#ulation would have title to explain the su!'e$t matter8 /efect Indians were e;cluded The s$heme did not ma e any provision for any &ndian to hold any 'udi$ial offi$e ex$ept that pf 4unsiff8 "he reforms of +ornwallis were >nown as +ornwallis +ode8

)eforms of (ohn hore -efore "i#h Courts were esta!lished at -om!ay( 4adras and Cal$utta two sets of $ourts were existin# there=

Aresiden$y

4ofussil

Crown@s Courts

Company@s Courts

*e$order@s Court D/C

4ofussil Courts /adar Courts

Cornwallis 1793 /ir %ohn /hore /hore had supported +ord Cornwallis in !rin#in# reforms so he was well aware of the existin# &ndian situations Cornwallis@s s$heme was well planned !ut it led to a$$umulation of lar#e volume of liti#ation and arrears of $ivil $ases awaitin# disposal in $ivil adalats8 /o 'usti$e was threatened8 %usti$e delayed means 'usti$e denied8 The purpose of Cornwallis to #ive &ndians free and impartial 'usti$e was $ompletely nullified8

&n 1793@s plan revenue disputes were allotted to the diwani adalats out of whi$h two diffi$ulties arose = 1< &n$rease of wor in diwani adalatsB a$$umulation of unde$ided $ases 1< .isposal of revenue demands !y Eamindars a#ainst tenants was very mu$h delayed !y this a$$umulation of wor -oth of these adversely affe$ted the $olle$tion of revenue

(ohn hore,s +hanges0 8irst +hange in &-29 To prevent the time of diwnai adalats from the overload of petty matters and to expedite 'usti$e administration( *e#ulation C&&& made de$rees of the re#istrar final in all suits for money of personal property valuin# up to *s 19 The diwani adalats has only dis$retionary power to revise the de$ision made !y re#istrar in su$h a $ase if the de$rees appeared to !e made erroneous or un6ust8 &n su$h $ases adalats@ de$ision would !e final8 &n all $ases of real and personal property valuin# over *s 19 re#istrar@s de$isions were made appeala!le to the Arovin$ial Courts of appeal in pla$e of diwani adalats .iwani adalats $ould refer the matter to the Colle$tors for their report on any a$$ounts the ad'ustment of whi$h was ne$essary for the final determination of $ase $on$ernin# rent or revenue8 The $olle$tor@s report $ould !e $onfirmed( set aside or altered !y the .iwani adalats8

8urther +hanges in &-2$ 179F@s reforms did not improve the situation 3various read'ustments of $ivil $ourts were made in 17998 The 179F@s reforms relieved diwani adalats !ut it over!urdened provin$ial $ourts !e$ause of appeals from re#istrar@s to these $ourts8 /o *e#8 GGGC& of 1799 provided that appeals from re#istrars were to #o to distri$t diwani adalats and not to the provin$ial $ourts and the de$ision of the diwani adalats would !e final8 4unsiffs $ould de$ide the petty $ases up to *s 9) and only one appeal in distri$t diwani adalats were allowed from those $ases8 The re#istrars were empowered to de$ide $ases up to *s 1)) and appeal from their de$ision $an !e made in distri$t diwani adalats and no provision for further appeal8 .istri$t diwani adalats $ould hear the $ivil $ases of valuation of more than *s 1))8 0n appeal from these $ases $ould !e made in provin$ial Courts8 Hhere valuation was more than *s 1)))( a further appeal was allowed to the /adar .iwani 0dalat8 The *e#istrar to the /adar .iwani 0dalat was to prepare ea$h month one report spe$ifyin# the num!er of suits de$ided in the month !y diwani adalats( re#istrars( munsiffs in ea$h distri$t and num!er of appeals de$ided !y ea$h provin$ial $ourtsB and he had to $ompile a report on the num!er of $ases pendin# !efore the various $ourts after every six months8 Court fee was imposed on new $ases as well as on the pendin# $ases and if fees on the pendin# $ases were not paid within a fixed date( the $ases would !e dismissed8 The fees were also imposed on the $allin# and summonin# the witnesses( exhi!its and appeals8 This re#ulation $onverted the imposition of $ourt fees into stamp duties8

+hanges introduced in &-2 The Court fee was in$reased and it was made $ompulsory to use spe$ial stamped papers for filin# papers in the $ourts8 6or speedy disposal of $ases it was provided that the de$rees of the Arovin$ial $ourts of 0ppeal were final in all $ases of money or personal property up to *s 9))) in value8 &n suits involvin# real property of more than *s 1)))( the de$ision of provin$ial $ourts were made appela!le to the /adar .iwani 0dalat 0ppeals from /adar .iwani 0dalats were made to the ?in# in Coun$il in $ases of more than five thousand pound and this appeal $an !e filed only within six months8 The -ritish Aarliament !y passin# an a$t of 1797 redu$ed the num!er of 'ud#es from four to three i8e8 C% and other two 'ud#es8 The 0$t of 1797 also $onfirmed the preparation of Code of *e#ulations ena$ted !y the Governor=General in Coun$il and *e#istered in the /upreme Court8 The $ourts were re5uired to administer 'usti$e a$$ordin# to those re#ulations8 /efects0 *estri$ts ri#ht of appeal %usti$e was made expensive )eforms *y Lord ?ellesley &n 1798=+ord Hellesley su$$eeded %ohn /hore as the Governor General8 To remove defe$ts from the existin# 'udi$ial system he introdu$ed $ertain $han#es whi$h are as follows> &. A##eals

.e$isions of the Arovin$ial 0dalats were made final in all $ases involvin# land or other real property valuin# not more than *s 9()))8 :ow the appeals $ould #o to the /adar 0dalats only when the su!'e$t matter involved ex$eeded *s 9))) in value irrespe$tive of whether real or personal property was involved8

<. e#aration of (udicial functions from :;ecutive "e was a#ainst the $on$entration of le#islative( exe$utive and 'udi$ial fun$tion in G8G8 6or G8G8=not possi!le to preside over /adar .iwani and :i,amat adalats *e#ulation && of 18)1 provided that /adar .iwani and /adar :i,amat adalats were presided over !y the three 'ud#es sele$ted and appointed !y the Governor General in $oun$il8 The Chief %ud#e would !e mem!er of the Coun$il and G8G and $ommander in $hief $ould not o$$upy this post8 The other two 'ud#es 3to !e servants of the $ompany havin# experien$e of 'udi$ial wor in provin$ial $ourt of appeal /adar .iwani adalats would !e open $ourts and two 'ud#es were form 5uorum of the Court 7. A##ointments of adar Ameens 6or speedy disposal of $ases in Eilas and Cities( "ead :ative Commissioners nown as /adar 0meens were appointed8 %ud#es of the Eila and City $ourt $ould appoint them from amon#st the persons of a!ility and experien$e with the prior approval of the /adar 0dalats8 /adar 0meens $ould de$ide $ases up to *s 1)) referred to them !y the %ud#es of the Eila and City $ourts 9. Assistant (udges

 &n Eila and City assistant 'ud#es were appointed to de$ide appeals from the Courts of *e#istrar or :ative Commissioners and ori#inal suits whi$h the 'ud#es of the Eila and City $ourts referred to them8 $. Adalat system e;tended The 0dalat system was extended to the $eded and $on5uered territories( the $eded territory were divided into distri$ts and in ea$h distri$t one servant of the Company was appointed as 'ud#e and 4a#istrate and another person as the Colle$tor8 *e#istrars( /adar 0meens and 4unsiffs were appointed to de$ide $ivil $ases8 *e#istrar= *s 1) /adar 0meens= *s 1)) 4unsiffs= *s 9) The %urisdi$tion of the /adar 0dalats at Cal$utta was also extended to the $eded territories8 &n the same way the $on5uered territories were !rou#ht under the adalat system of the Company8 /efects 4unsiffs were not paid properly