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DR.

RAM MANOHAR LOHIYA


NATIONAL LAW UNIVERSITY
LUCKNOW

FINAL PROJECT
HISTORY-III
THE PRIVY COUNCIL: THE FINAL COURT FOR THE
BRITISH EMPIRE

Under The Guidance of: Submitted By:


VANDANA SINGH Lokesh Chandra ranjan
Asst. Professor Roll No. 75, Section A
3rd Semester, 2016-2017

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ACKNOWLEDGEMENT

I am heartily thankful to my subject teacher Mrs. Vandana Singh mam for her constant support
and valuable guidance in the completion of this project. Thank you mam for without you this
project would not have been possible.

I would like to thank my parents for having supported me in all possible ways for the completion
of this project.

I am also thankful to the Library of my university “DR. MADHU LIMAYE LIBRARY” for the
help and support which they provided to me to complete this project.

And last but not the least I wish to thank all my friends and colleagues who supported me and
gave their valuable points of view for the completion of this project.

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TABLE OF CONTENTS Page No.
1. Introduction 4
2. Origin & Establishment of Privy Council 7
3. Composition of Privy Council 9
4. Appeals to Privy Council 10
5. Appeals from India 11
6. The Formation, Composition of Judicial Committee 14
7. Role of Privy Council 16
8. Drawbacks of Privy Council 17
9. The proceedings of Judicial Committee of the Privy Council & its
judgments 18
10. Federal Court of India to Supreme Court of India 18
11. Conclusion 21
12. Bibliography 22

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THE PRIVY COUNCIL AS THE FINAL COURT FOR THE
BRITISH EMPIRE

INTRODUCTION :
If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal
System is more or less based on the English Legal System. In fact, the systematic development
of Indian judicial institutions, judicial principles, laws etc. has occurred during British regime
itself. Besides this, the British regime in India has also developed a hierarchical judicial system
in India. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly
called as ‘Privy Council’. It has played a significant role in shaping the present legal system in
India.

The Privy Council was nothing but the judicial body, which heard appeals from various courts of
the British colonies including India. The origin of Privy Council can be traced back to the
Normans Period of English. There was a Supreme Federal Council of Normans. It was known as
‘Feudal Curia’ and it acted as the agency of Normans to rule England. Gradually with the
passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum Concillium’.

‘Magnum Concillium’ was to deal with executive matters whereas ‘Curia Regis’ performs
judicial functions. The Curia Regis was a small body consisting of high officials of the State,
members of the Royal household and certain clerks chosen by the Crown itself. Their duty was
to advice the King in matters of legislation and to deliver a justice. In fact, the Curia Regis acted
as a final Appellate Court for England and English Empire.

Gradually, the Curia Regis came to be considered as the advisory body of the King in the field of
judicial administration. During the regime of Henry II, there was a tremendous increase in the
judicial functions of Curia Regis and it lead to the formation of two different Common Law
Courts in England. They are: King-in-Parliament i.e. Court of House of Lords King-in-Council
i.e. Court of Privy Council the Privy Council was established during the middle of16th century.
It thus acted as the advisory body of the King with regard to the affairs of the State. It was based
on the royal prerogative of the sovereign as the FOUNTAIN HEAD OF JUSTICE.

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Composition of Privy Council Earlier, the Privy Council used to do its work by means of a
system of committees and subcommittees. These committees did not have permanent existence
and membership and mostly members were the person’s with little judicial experience. Officially
the Privy Council was created on permanent basis thorough the Act of 1833 Judicial Committee
of British Parliament.

The Act empowered the Privy Council to hear appeals from the courts in British Colonies. The
quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord
President, Lord Chancellor and other eminent judges working in English courts. Thereafter, the
Appellate Jurisdiction Act, 1908 this membership of the judicial committee was extended two.
According to that provision two Indian High Court judges were appointed in the Privy Council.

Appeals from Courts in India to the Privy Council Charters of 1726 and 1753The Charter of
1726 granted the right to appeal from the Courts in India to Privy Council. The Charter of 1753,
which reorganized the Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council
from Mayor’s Courts. The Regulating Act, 1773Section 30 of 1774 Charter granted a right to
appeal from the judgments of Supreme Court to Privy Council.

Appeals to Privy Council from High Court sunder the Indian High Courts Act, 1861 the high
Courts were established at three Provinces. This Act provided for the right to appeal from High
Courts to Privy Council from all of its judgments except in Criminal matters. Appeals from
Federal Court in India to Privy Council the Government of India Act, 1935 provided for the
establishment of Federal Court in India. The provision was made for filing of appeals from High
Courts to the Federal Court and from Federal Court to the Privy Council.

India is the best example. The long involvement of English administrators, lawyers and judges in
the development of laws in India, including the work of Law Commissions and the development
of statutory Indian codes in many fields was crucial. It was helpfully reviewed by MC Setalvad,
formerly Attorney-General of India, in the Lionel Cohen Lectures on "The Role of English Law
in India" at the Hebrew University of Jerusalem.1Mr. Setalvad concluded his assessment of the
reception of English law before independence in this way: 2It would be true to say that the

[1] MC Setalvad The Role of English Law in India (Magnes Press, Jerusalem, 1966), distributed in Great Britain, the
British Commonwealth and Europe by the Oxford University Press.
[2] At 36

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foundation of all law in India, civil or criminal law, is English law as constituted by the common
and statute law of England and the judicial decisions of its courts. Nevertheless, the principles
drawn from these sources have been largely and in numerous matters subjected to changes to
adapt them to Indian conditions so that notwithstanding the main sources from which it is drawn
Indian jurisdiction can still rightly be called Indian in its structure and operation. Next, the huge
volume of Indian appeals resulted in the bulk of the work of the Judicial Committee coming from
that jurisdiction. The regular participation of those experienced in Indian law ensured that the
English-based judges were familiar with the background. To illustrate the last point, the Judicial
Committee Act 1871, s 1 empowered the Crown to include in the four paid members of the
Judicial Committee the Chief Justice of the High Court in Bengal, Madras or Bombay. Sir James
Colville, who had earlier been an Indian assessor to the Judicial Committee, and Sir Barnes
Peacock, were appointed in that capacity. Browsing through Moore's Indian Appeals series from
1836 to 1872 and the 78 volumes of the Law Reports Indian Appeals series from 1873 to 1950,
brings home that, whether described as 'assessors' or simply as members of the Board, judges
with long experience in India regularly sat on Indian cases. Indian appeals dominated the
workload of the Judicial Committee. That is illustrated by the "Table of Appeals disposed of by
the Judicial Committee 1925–1931" set out in Professor Enid Campbell's pioneering study "The
Decline of the Jurisdiction of the Judicial Committee of the Privy Council".3

The total appeals for those 7 years are:4

India -659,Ceylon -22,Canada -131,Australia -35,New Zealand-15,South Africa-0,Colonies-90.


Total =952.

There was no formal black-letter provision for appeal from India to the Privy Council until 1726.
Until that year all appeals to the Privy Council from India were done on an ad-hoc basis, i.e.
petitioners complaining of mistreatment at the hands of a court or the East India Company. In
these years the Privy Council had provided advice on how to proceed in judicial matters in India.
The 1726-74 chartered court regime involved two courts on the civil side, the Mayor's Court, and
the Court of Appeals with appeal lying to the Privy Council. These courts heard civil cases only
and there are no appeals in the dataset after 1726 which refer to criminal appeals (outside the

[3] Ibid. Note: only 50 (or five per cent) came from Australia and New Zealand
[4] Ibid at 202.

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scope of the Privy Council the Crown only granted one pardon during this period in a criminal
case from India).

For example, the appeal of Manuel De Lima from Madras in 1679 as his was the first to actually
appeal from a court judgment. In 1726 a royal charter established new Mayors' Courts and
Courts of Appeal at Bombay [Mumbai], Madras[Chennai], and Calcutta [Kolkata]and included a
provision similar to those in the charters of Atlantic colonies providing for appeal to the Privy
Council in cases worth around £400 (1,000 pagodas).

ORIGIN AND ESTABLISHMENT OF PRIVY COUNCIL:

As it is an accepted fact that, every political system develops for itself a certain sort of
legislative, executive and the judicial machinery for its smooth working and administration.
Establishment of Privy Council was with the same objective. The Privy Council was nothing but
the judicial body, which heard appeals from various courts of the British colonies including
India. The origin of Privy Council can be traced back to the Norman Period of English. At the
beginning of 11th century, the Normans introduced a Central Government in England for
controlling their executive, legislative as well as judicial Departments. There was a Supreme
Federal Council of Normans. It was known as ‘Curia’ and it acted as the agency of Normans to
rule England. Through it the whole administration in England was controlled. However,
gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum
Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas
Curia Regis performs judicial functions. The Curia Regis was a small body consisting of high
officials of the State, members of the Royal household and certain clerks chosen by the Crown
itself. Their duty was to advice the King in matters of legislation and administration and to
deliver a justice. In fact, the Curia Regis acted as a final Appellate Court for England and
English Empire.5 Gradually, the Curia Regis came to be considered as the advisory body of the
King performing most of the vital functions in the field of judicial administration. Finally, during
the regime of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis
and it lead to the formation of two different Common Law Courts in England. They are:

1. King-in-Parliament i.e. Court of House of Lords

[5] http://www.nas.gov.uk/guides/privyCouncil.asp accessed on 24th October 2014.

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2. King-in-Counsel i.e. Court of Privy Council.

The former became the highest Court of Appeal for the Courts in England while the later acted
as the highest Court of Appeal for all British Possessions and Settlements beyond the seas. In
this way, the Privy Council was established during the middle of 16th century. It thus acted as
the advisory body of the King with regard to the affairs of the State. Headquarter of the Privy
Council was at London and its powers were implemented through the means of royal
proclamations, orders, instructions etc.

The jurisdiction of Privy Council in cases in law and equity arising in England was abolished,
and was brought before the king in the parliament. Thus the house of the lords is the final court
of appeal for the cases in England. For the British possessions beyond the seas, petition seeking
justices continued to go to the king and the council, which was the final court of appeal for the
disputes of such territories.6

During the British regime in India, the King in Council, or Privy Council as it was generally
called, was the highest forum to entertain appeals from the judgments and orders passed by the
courts in India. On enactment of the Judicial Committee Act 1833, it came to be called the
Judicial Committee of Privy Council.

The decisions of the Judicial Committee used to be couched in advisory form, though, in
practice, the Crown always accepted its advice, and it was unthinkable that its report will not be
given effect to. The Privy Council acted as a channel, through which English concepts came to
be assimilated with the Indian laws. It served as a bridge between the Indian and the English
legal system, over which legal ideas travelled from England to India. It was through this body,
that the common law of England was introduced in India under the British regime, as the base of
its legal system. During its career as the highest court of appeals from India for the period of
about 200 years, Privy Council rendered over 2,500 judgments, and till today these judgments
constitute the fountain-source of law on many points in India.7

[6] Sir G.C. Rankin, ‘The Judicial Committee of the Privy Council’ (1939-1947) 7 Cambridge Law Journal 2-22.

[7] http://www.nationalarchives.gov.uk/records/research-guides/privy-council-correspondence.htm accessed on 24th


October 2014.

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However, there was a rising demand for establishment of Supreme Court in India, since it was
felt that appeal to the Privy Council was very costly and beyond the means of common man.
More important was the reason that it detracted from the self respect of the Indian people. The
Government of India Act, 1935 introduced a federal constitution to India, involving distribution
of powers between the Centre and the constituent units.

The Federal Court of India began functioning from October 1, 1937. To begin with, the Federal
Court had a very limited jurisdiction, confined to original jurisdiction in disputes between the
centre and constituent units or inter se amongst the latter, advisory jurisdiction and appellate
jurisdiction on a certificate from the High Court. Appeals from Federal Court could go to the
Privy Council.

After achieving their political aspirations by obtaining independence in August, 1947, there was
demand from the Indian polity for enlarging the jurisdiction of the Federal Court and granting
more powers to it. With effect from 10th October, 1949 appeals to the Privy Council were
abolished altogether and the entire appellate jurisdiction was vested in the Federal Court. On
26th January, 1950, Federal Court gave way to the Supreme Court of India under the new
Constitution.8

The Supreme Court of India was inaugurated on January 28, 1950 by late Shri M.C. Setalwad,
first Attorney General for India. The Court initially functioned in the Chamber of Princes, a part
of Parliament House, where Federal Court used to sit from 1937 to 1950. It shifted to its own
building and started functioning there on 4th August, 1958.

COMPOSITION OF PRIVY COUNCIL:

As far as India is considered, the Privy Council acted as an appellate body since 1726 with the
establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means
of a system of committees and sub-committees. However, the committees did not have
permanent existence and membership and mostly members were the persons with little judicial
experience. Naturally it affected the administration of justice. In 1828, Lord Bourgham criticized
such a constitution of Privy Council keeping in view the extent and importance of the appellate
jurisdiction of Privy Council. Subsequently, in 1830 he became the Lord Chancellor and during

[8] Jain, M.P., Outlines of Indian Legal & Constitutional History, Delhi: Lexis Nexis, 2008.

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his regime, the British Parliament enacted the Judicial Committee Act, 1833 in order to reform
the constitution of Privy Council. In this way, officially the Privy Council was created on 14th
Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear appeals
from the courts in British Colonies as per the provisions of the Act. Accordingly under this Act,
the quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord
President, Lord Chancellor and other Chancellors holding judicial offices. This quorum was
reduced to three in 1843. The recommendations to the Crown were given by the majority of
quorum. Thereafter, by means of the Appellate Jurisdiction Act, 1908 this membership of the
judicial committee was extended. It also empowered His majesty to appoint certain members not
exceeding two. These were nothing but the judges of High Court in British India. Thus some of
the members of the Privy Council were the persons versed in Indian Laws.

APPEALS TO PRIVY COUNCIL:

In 17th Century some appeals were preferred to King-in -Council as a last resort. As the British
Empire gradually grew, the burden on King-in-Council had been increased. The number of the
appeals had been increased year-by-year. There were several statutes made up in different
colonies and dominions. Appeals made under such statutory provisions came to be known as
“Appeals as of Right” where the appeals were sent to the privy council based on the provisions
of the statutes, acts or charter, thus these were the appeals that could be made as of a right of
being in a colony and administered justice as the subjects of the emperor, though at any time the
appeals can be dismissed by the privy council on various grounds. This did not exhaust the Royal
prerogative completely as being the Fountain Head of Justice there were certain aces were the
Privy Council would itself take up appeals as issues on public importance or grave injustice and
King-in-Council still entertained appeal made to it with special permission. Every though the
circumstances of a particular appeal did not fulfill the requirements expressly made in respect of
“Appeals as of Right”. These appeals were called as “Appeals by Special Leave”.9

APPEALS FROM INDIA:

This can be discussed under following sub-headings:

[9]David Swinfen, Imperial appeal: the Debate on the Appeal to the Privy Council, 1833-1986(Manchester, 1987).

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A. Charters of 1726 and 1753:

In the Indian Legal History, the Charter of 1726 for the first time granted the right to appeal from
the Courts in India to Privy Council. The said Charter established three Mayor’s Courts at
Calcutta, Madras and Bombay. The provision was made as to first appeal from the decisions of
Mayor’s Court to the Governor-in-Council in respective provinces and the second appeal from to
the Privy Council in England. Whereas the Charter of 1757, which re-established the Mayor’s
Courts reaffirmed the said provisions of Appeal to Privy Council from Mayor’s Courts.

B. The Regulating Act, 1773:

This Act empowered the Crown to issue a Charter for establishment of Supreme Court at
Calcutta. Thus the Charter of 1774 was issued by the Crown to establish a Supreme Court at
Calcutta and it abolished the respective Mayor’s Court. Section 30 of this Charter granted a right
to appeal from the judgments of Supreme Court to Privy Council in Civil matters if following
two conditions were followed;

i) Where the amount involved exceed 1000 pagodas

ii) Where the appeal is filled within six month from the date of decision.

In such cases the Supreme Court at Calcutta had to transmit to the Privy Council the true and the
exact copy of all the evidences, judgments, proceedings, decree and orders made in such appeal.

In the same way, the Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the
Recorders Court and provided for direct appeals from these Courts to the Privy Council. Thus the
right to appeal from King’s Court to Privy Council was well recognized. Besides this, there were
Company’s Court i.e. Sadar Diwani Adalat and Sadar Nizamat Adalat. They also recognized the
right to appeal to the Privy Council from their decisions. Accordingly the Act of Settlements,
1781 provided for right to appeal from Sadar Diwani Adalat at Calcutta in Civil matters.

C. Appeals to Privy Council from High Courts:

Under the Indian High Courts Act, 1861 the high Courts were established at three Provinces. It
was the amalgamation of King’s Courts and Company’s Courts. This Act provided for the right
to appeal from High Courts to Privy Council from all of its judgments except in Criminal

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matters. In addition to this, there was a provision of Special leave to Appeal in certain cases to be
so certified by the High Courts.

D. Appeals from Federal Court in India to Privy Council:

The Government of India Act, 1935 provided for the establishment of Federal Court in India.
The Federal Court was given exclusive original jurisdiction to decide disputes between the
Center and constituent Units. The provision was made for filing of appeals from High Courts to
the Federal Court and from Federal Court to the Privy Council. The Federal Court also had
jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High Court
was essential.

E. Abolition of jurisdiction of Privy Council:

In 1933, a white paper was issued by the British Government for establishment of the Supreme
Court in India so as to here appeal from Indian high Courts. It was the first step in avoiding the
jurisdiction of Privy Council. After Indian independence, the Federal Court Enlargement of
Jurisdiction Act, 1948 was passed. This Act enlarged the appellate jurisdiction of Federal Court
and also abolished the old system of filing direct appeals from the High Court to the Privy
Council with or without Special Leave. Finally in 1949, the Abolition of Privy Council
Jurisdiction Act was passed by the Indian Government. This Act accordingly abolished the
jurisdiction of Privy Council to entertain new appeals and petitions as well as to dispose of any
pending appeals and petitions. It also provided for transfer of all cases filed before Privy Council
to the Federal Court in India. All powers of the Privy Council regarding appeals from the High
Court were conferred to the Federal Court.10

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court has
been established and is serving as the Apex Court for all purposes in India. It hears appeals from
all the High Courts and Subordinate Courts. With this the appellate jurisdiction of the Privy
Council finally came to an end.

[10] Sutherland, David, Judgments of the Privy Council on Appeals from India, Great Britain: Privy Council, Judicial
Committee, Thacker, Spink 1880.

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If the appeal system be seen based on the different types of bodies established for the purpose of
disposing justice, the appeal system may be divided as follow.

1. Appeals from Major’s Courts of 1726:

Appellate jurisdiction of the Privy Council was made available for the First time to Indians by
the Charter of 1726 by which Mayor’s Courts were established in three Presidencies of India viz.
Calcutta, Bombay and Madras.

 The appeal should be worth more than 1000 pagodas to be sent to the king and the council.
An appeal of less than 1000 pagodas will be sent to the governor and the council.
 The appeal should be made within 14 days from the date on which the judgment appealed
against was ‘entered of record.’

2. Appeals from the Supreme Court under Regulating Act, 1773:

The Mayors Courts were displaced by Supreme Court under Regulating Act, 1773 and the
Judicial Charter of 1774, in which the provision for Appeals to Privy Council was made with
respect to the following- in Civil Cases.

 Subject-matter in dispute was worth 1000 pagodas or more.


 Within 6 months from the day of pronouncing the judgment.
 In such cases the Supreme Court at Calcutta had to transmit to the Privy Council the true and
the exact copy of all the evidences, judgments, proceedings, decree and orders made in such
appeal.
In Criminal Cases-
The Supreme Court, in criminal appeals, had the discretion to allow or deny an appeal to the
Privy Council.

3. Appeals from Recorders Court under the Act of 1797:

Recorder’s Courts were established in Madras and Bombay under the Act of 1797, provisions
analogous to those in Calcutta were made for regulating appeals from recorders court to the king
and council.

In 1800 the recorders court at Madras gave way to the Supreme Court at madras, and in 1823 the
recorders court at Bombay gave place to the Supreme Court at Bombay. They had the same

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provisions as the Supreme Court at Calcutta, but for the Supreme Court at Bombay the pecuniary
limit was fixed at 3000 pagodas.

4. Appeals from Sadar Adalats:

Act of Settlement, 1781allowed appeal as of right to be presented from the Sadar Divani Adalat
to the Privy Council, with following provisions.

 Within six months of the date of delivery of judgment appealed against.


 Subject-matter to 5000 pounds or more.
But after the governor-general- in-council passed the regulation XVI of 1797 laying down
certain rules to govern appeals from Sadar Adalat to Privy Council, the appealable monetary
limit was fixed at Rs. 50000 or above. The Adalat also had to get prepared two exact copies
of the proceedings prepared including all evidence and documents translated into English to
be sent to England.

5. The Judicature Act, 1845:

The Company had to incur expenditure towards the appeals. The Company had to spend #
151537 to 67 appeals. Thus it had become very burden on Company. To prevent this, the
Judicature Act, 1845 was enacted,, which came into force with effect from 1-i-;84S. The appeals
were to be managed by parties themselves.

6. High Courts Act, 1881:

The Supreme Courts, Sadar Adalats were abolished and in their place the High Courts were
established in the Presidency towns by the Indian High Courts Act, 1861.

An appeal could be made to the Privy Council in any case not a being of a criminal jurisdiction
from any final judgment, decree of order of the High Court.

If the value of the subject- matter was not less than Rs. 10,000 In criminal cases, an appeal could
ire to the Privy Council from any Judgment or sentence of a High Court provided the ‘High
Court certifies that the case was fit one for appeal to the Privy Council.

THE FORMATION, COMPOSITION OF THE JUDICIAL COMMITTEE


OF THE PRIVY COUNCIL

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The Judicial Committee, as distinct from the Privy Council, was created under the Judicial
Committee Act 1833. This Act was passed under the aegis, and at the insistence of, Lord
Chancellor Henry Brougham, and the resulting arrangements have been described as an
“enduring monument” to his “law reforming zeal.” The 1833 Act aimed to ameliorate many of
the deficiencies which Brougham had identified in the Privy Council as the court of final
colonial appeal, and which he thought totally unfitted it as the appellate court of a burgeoning
empire. These included a dearth of legally qualified judges, and especially of judges with
knowledge of the varied legal systems and laws at issue, the ability of, and indeed reliance upon,
non-lawyers to make up the quorum of the court, their ability to overrule the judgment of their
legally trained brethren, and a chronic shortage of sitting days, which led in turn both to long
delays in obtaining a ruling and a suspicion that complicated cases were, when eventually heard,
being dealt with in unseemly haste. Seeking to remedy these evils, the 1833 Act established a
distinct Judicial Committee of the Privy Council with jurisdiction over colonial, ecclesiastical
and sundry other appeals.11 Under s1 of the Act the membership of this committee included the
Lord Chancellor and former Lords Chancellor, together with other members of the Privy Council
who held or had held high judicial office. It provided for some measure of expertise in colonial
laws and legal systems through the appointment of Privy Councilors who had held certain high
judicial offices in the colonies. It also, however, retained the lay element, which Brougham had
sought to exclude, since it included in the membership of the Judicial Committee the Lord
President and former Lords President of the Council, and also empowered the sovereign to
appoint to it two other Privy Councilors under her Sign Manual.12

While the 1833 Act fell short of achieving Lord Brougham’s wish to exclude the laymen from
hearing appeals, it also failed to achieve the appointment of salaried judges, which he had seen as
being essential to the creation of a capable, adequately staffed, and efficient court. Nor did the
Act address the extremely limited number of days on which the court could sit to dispose of
business. Proposals for the appointment of salaried judges, to augment the manpower provided
by judges who were heavily employed in their own courts, were introduced in 1841 and 1844,

[11] Jain, M.P., Outlines of Indian Legal & Constitutional History, Delhi: Lexis Nexis, 2008.
[12]William Macpherson, The Practice of the Judicial Committee of Her Majesty’s Most Honourable Privy
Council (London, 1873).

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and administrative reforms were proposed again in 1856. All initiative failed until, in 1871, the
death of Lord Kings down, who had been an extremely active and efficient member of the
Judicial Committee, and the accumulation of a glut of Indian business, sparked a crisis. The
Judicial Committee Act 1871 both extended the number of sitting days and provided for the
appointment of four full-time judges who were judges of Superior Courts or the Chief Justices of
the High Courts in Bengal, Madras or Bombay.

In the years immediately after the Act of 1871, the most significant Act affecting the
composition of the Judicial Committee was the Appellate Jurisdiction Act 1876. By s14 of that
Act the salaried judges of the court were to be abolished as their offices fell vacant through
death, retirement or resignation. Their place was to be taken by the Lords of Appeal in Ordinary
who staffed the reformed Judicial Committee of the House of Lords under that Act. Later, Acts
passed in 1881, 1895 and 1913 reinforced the manpower of the Judicial Committee, first by
extending membership to all Lords Justice of the English Court of Appeal who were also Privy
Councilors, and then to an extended range of Privy Councilors who had held high judicial office
in Her Majesty’s dominions of Canada, Australia and South Africa and could provide expert
knowledge of the law of those countries.

ROLE OF PRIVY COUNCIL:

The Privy Council ha13s contributed a lot in development of Indian Legal System. It served a
cause of justice for more than two hundred years for Indian Courts before independence. As far
as the judicial institution is concerned, the Privy Council was a unique and unparallel among all
the Courts round the world. It set the task of ascertaining the law, formulating legal principles,
molding and shaping the substantive laws in India. It also helped in introduction of the concept
of ‘Rule of Law’, on which we have setup the whole philosophy of our ‘Democratic
Constitution’. Besides the Privy Council also lead to the introduction of Common-law in India,
this forms the basis almost all present Indian laws. The contribution of Privy Council in personal
laws like Hindu Law and Muslim Law is also noteworthy. It acted as a channel, through which
English legal concepts came to be assimilated with the body and fabric of the Indian law. It

[13] D.B. Swinfen, ‘Henry Brougham and the Judicial Committee of the Privy Council’ (1974) 90(3) Law Quarterly
Review 396-411.

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always insisted on the maintenance of the highest standards of just and judicial procedure,
especially in the field if criminal justice. In this way, the decisions of Privy Council have
enriched the Indian jurisprudence in many respects. Its contribution to the statute law, personal
laws, and commercial laws is of great importance. Thus during the period of 1726-1949 and
specifically after 1833 and onwards, the Privy Council has played a magnificent role in making a
unique contribution to Indian laws and the Indian Legal System.14 The fundamental principles of
laws as laid down by the Privy Council are considered as path finder for the Indian Courts still
today. At present also, the Privy Council command a great respect among Indian lawyers, judges
as well as Indian public as the highest judicial institution. Some of the principles laid down by
the Privy Council are still followed by the Supreme Court of India. The view taken by the Privy
Council is binding on the High Courts in India till the Supreme Court has decided otherwise.
One of such instance can be given in the form of ‘principle of absolute liability’ as propounded
by the Supreme Court in the historic oleum gas leak case. Thus as a whole, the contribution of
Privy Council is considered as remarkable for the development of Indian Legal System and
Indian Judicial Administration. It has played a great unifying role in shaping divergent laws in
India.

DRAWBACKS OF PRIVY COUNCIL:

In spite this contribution of Privy Council, it suffered from following drawbacks:

1. For long, it was staffed by Englishmen only, having no knowledge of Indian laws.

2. The location of the Privy Council was in England far away for common man in India making
it disadvantageous.

3. The subjection to the jurisdiction to foreign judicial institution i.e. the Privy Council was
considered as a symbol of slavery.

4. All this put the poor man in India in difficult situations for seeking Justice.

THE PROCEEDINGS OF THE JUDICIAL COMMITTEE OF THE PRIVY


COUNCIL AND ITS JUDGMENTS:

[14] Bhatia, Harbans Singh, Justice System & Mutinies in British India, Delhi: Deep & Deep Publications, 2001.

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Here it is sufficient to note that under the Appellate Jurisdiction Act 1833 s7 the Judicial
Committee was empowered to take oral or written depositions from witnesses, and under s8 it
had the power to re-examine witnesses. In practice it rarely chose to exercise these powers, and
would only do so in exceptional circumstances where the evidence had not been available in
previous proceedings.

Perhaps the most interesting feature of Judicial Committee practice today continues to be the
form in which it delivers its judgments. This reflects the mixed nature of the Privy Council as a
body with executive, judicial and legislative functions.15 Thus, the role of the Judicial
Committee being to advise the Queen in cases where her colonial subjects approach the throne
for justice, its judgments take the form of advice to the Monarch. Though it must be clear that
the Judicial Committee in issuing such judgments or advice is acting purely in a judicial, and not
an executive capacity (see Judicial Committee Act 1833 s3), its decisions take the form of Orders
in Council, which are a form of delegated legislation issued under the prerogative.

In the nineteenth century the Judicial Committee was further marked out as unique by virtue of
the application of the principle of Unity in Judgment, which prima facie precluded the
publication of dissenting judgments. Another interesting feature of the Judicial Committee’s
rules was that, though it would only exceptionally depart from its own previous decisions, it was
not bound by them.16

FEDERAL COURT OF INDIA TO SUPREME COURT OF INDIA:

The Government of India Act, 1935 changed the structure of the Indian Government from
“Unitary” to that of “Federal” type. The Distribution of powers between the Centre and the
Provinces required the balance to avoid the disputes which would be arisen between the
constituent units and the Federation.

The system of Federation clearly demanded the creation of a Federal Court which would have
jurisdiction over the States as well as the Provinces. Federal Court functioned only for 12 years.

[15]Howell, P.A., The Judicial Committee of the Privy Council, 1836 -1876: its origins, structure and development,
London: Cambridge University Press, 2008.
[16] Cushing v Dupuy [(1880) 5 App Cas 409)].

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It was the highest Court in India. Over it, there was Privy Council. But to approach the Privy
Council required huge expenses to the litigants’ Hence the establishment of the Federal Court
was made necessary.

It saved the time, expenses to the litigants. It was also a convenience to the Indians. Therefore,
the Federal Court lessened the work load of the Privy Council, and gradually it occupied the
position of Privy Council. Lastly, in the place of Federal Court, the Supreme Court of India has
been established on 25-1-1950.

Establishment:

Section 200 of the Government of India Act, 1935 provided for the establishment of Federal
Court in India. On 1 -10-1937, the Federal Court was inaugurated at Delhi. Sir Mauric Gwyer
was the First Chief Justice of the Federal Court. It was a Court of Record. Sir Maurice
Gwyer(who had association with preparation of 1935 Act) Sir Shah Muhammad Sulaiman(He
was the Justice of Allahabad High Court) and Mukund Ramrao Hayakar(Leading Advocate of
Bombay), were the initial judges appointed to the federal court.

Appointment of Judges:

Judges and the Chief Justice were to be appointed by His Majesty. They were to lode office till
the age of 65 years. His Majesty was empowered to remove any Judge from his office on the
grounds of misbehavior or infirmity of mind or body, on the recommendation of the judicial
committee of the Privy Council.

Qualifications:

Qualifications required for a judge are-

i. 5 years experience as a Judge of a High Court; or

ii. 10 years standing as an advocate or barrister; or

iii. 10 years standing Court.

Salary:

The Judges of the Federal Court were entitled such salaries and allowances and to such rights in
respect of leave and pensions, as were laid down by His Majesty from time to time.
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Jurisdiction of the Federal Court:

The Federal Court got three kinds of jurisdictions

i. Original;

ii. Appellate; and

iii. Advisory.

i. Original Jurisdiction:

The Original Jurisdiction was confined to disputes between Units of the Dominion or between
the Dominion and any of the units. The private individuals had no right to sue any Dominion
before the Federal Court.

ii. Appellate jurisdiction:

The Federal Court exercised appellate jurisdiction in constitutional cases under the Act of 1935.
Its appellate jurisdiction was extended to civil and criminal cases. On the same principles and
jurisdiction the Supreme Court of India was established.

An appeal from any judgment, decree or final order of a High Court would be entertained by the
Federal Court, if the High Court certified that the case involved a substantial question of law as
to the interpretation of the Act of 1935 or any other Act and law. The certificate was a condition
precedent to every appeal.

iii. Advisory Jurisdiction:

The Federal Court was empowered to give advisory opinion to the Governor-General, whenever
a question of law had arisen or is likely to arise which is of such a nature and of such public
importance that it was expedient to obtain the opinion of the Federal Court upon it. The Court
after such hearing as it thinks fit report to the Governor- General thereon.

Authority of Federal Court:

The High Courts were subordinate to Federal Court. The law declared by the Federal Court and
any judgment of the Privy Council will be binding on all the courts in British India. Expansion of

Jurisdiction:

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From 1937 to 15-8-1947, the Federal Court entertained only the appellate jurisdiction in
constitutional cases. After Independence Act, 1947, the Federal Court was empowered to have
the appellate jurisdiction in civil and criminal matters also. But at the same time, geographical
area was reduced, as the Pakistan was separated.

Abolition of Federal Court:

The abolition of the Privy Council Jurisdiction Act 1949 severed the connection of Privy Council
with Federal Court with effect from 15-12-1949 by the Act of 1949, “Period of golden Age of
Federal Court” began when lasted till the establishment of the Supreme Court of India on 26-1-
1950.

CONCLUSION:

Federal Court worked for a short period of 12 years. But it left a permanent work and mark on
the legal history of India. It was the First Constitutional Court. It was also the First All-India
Court of extensive Jurisdiction.

During the period of 1937 to 1950, two English and 6 Indian Justices performed their services.
All of them got the rare distinction of being the Federal Court of India. They maintained the
noble traditions.

They contributed a great deal to the establishment of sound federal judiciary in India. They also
built up great traditions of independence, impartiality and integrity which were inherited by its
successor the Supreme Court of India.

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BIBLIOGRAPHY

1. Jain, M.P., Outlines of Indian Legal & Constitutional History, Delhi: Lexis
Nexis, 2008.
2. Bhatia, Harbans Singh, Justice System & Mutinies in British India, Delhi:
Deep & Deep Publications, 2001.
3. Sutherland, David, Judgments of the Privy Council on Appeals from India,
Great Britain: Privy Council, Judicial Committee, Thacker, Spink 1880.
4. Howell, P.A., The Judicial Committee of the Privy Council, 1836 -1876: its
origins, structure and development, London: Cambridge University Press,
2008.

5. Sir G.C. Rankin, ‘The Judicial Committee of the Privy Council’ (1939-1947)
7 Cambridge Law Journal 2-22.
6. David Swinfen, Imperial appeal: the Debate on the Appeal to the Privy
Council, 1833-1986(Manchester, 1987).
7. D.B. Swinfen, ‘Henry Brougham and the Judicial Committee of the Privy
Council’ (1974) 90(3) Law Quarterly Review 396-411
8. William Macpherson, The Practice of the Judicial Committee of Her
Majesty’s Most Honorable Privy Council (London, 1873).
9. http://www.nas.gov.uk/guides/privyCouncil.asp accessed on 24th October
2014.
10.https://archive.org/details/proceedingsando01commgoog accessed on 24th
October 2014.
11.http://www.nationalarchives.gov.uk/records/research-guides/privy-council-
correspondence.htm accessed on 24th October 2014.

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