Judicial system

1. Background: From commercial jurisdiction to territorial justice

Before British consolidation, judicial authority in India was distributed among rulers, qazis, revenue officials, village institutions and caste or community bodies. Islamic jurisprudence, Hindu legal traditions, royal regulations and local customs operated in overlapping spheres. Colonial rule did not replace this diversity immediately; it gradually reorganised it through courts, written procedures and state-backed legal categories.

The Company initially needed courts to settle disputes within its trading settlements. The Charter of 1726 created Mayor’s Courts in Bombay, Madras and Calcutta, primarily for civil adjudication. Appeals went to the Governor and Council and, in qualifying cases, to the King-in-Council. These were presidency-town institutions, not a uniform judicial network for the Indian countryside.

The grant of Diwani rights over Bengal, Bihar and Orissa in 1765 transformed the Company into a territorial revenue power. Revenue disputes, property claims and criminal administration consequently became central concerns. The judicial system developed along two broad tracks: Crown courts in the presidency towns and Company adalats in the mofussil, meaning areas outside those towns. Their differing jurisdiction and legal traditions generated disputes until institutional consolidation in the nineteenth century.

• Diwani referred to revenue administration and civil jurisdiction; nizamat was associated with criminal justice and policing.
• The history of colonial courts must distinguish institutions in the presidency towns from those in the mofussil.

2. Warren Hastings and the problem of competing jurisdictions

Warren Hastings’s judicial plan of 1772 established a Mofussil Diwani Adalat in each district, initially presided over by the Collector, for civil disputes. A Mofussil Faujdari Adalat dealt with criminal matters through Indian judicial officers, including qazis and muftis, under Company supervision. At the apex stood the Sadar Diwani Adalat for civil appeals and the Sadar Nizamat Adalat for criminal supervision and review. Subsequent plans altered personnel and arrangements, so the 1772 structure should not be treated as permanently unchanged.

In matters such as inheritance, marriage, caste and religious usage, Hindu and Muslim legal traditions were applied to their respective communities. Pandits and Muslim law officers advised European judges. Criminal justice initially retained a framework derived from Islamic law, although Company regulations increasingly modified it. This policy helped construct Anglo-Hindu and Anglo-Muhammadan law through translation, interpretation and judicial precedent.

The Regulating Act, 1773 authorised a Supreme Court at Fort William in Calcutta. Established by royal charter in 1774, it consisted of a Chief Justice and three other judges; Sir Elijah Impey was its first Chief Justice. Its application of English law and expansive jurisdictional claims created friction with Company authorities and Indian inhabitants.

The Act of Settlement, 1781 clarified and restricted the Supreme Court’s jurisdiction. Among other changes, it excluded revenue matters and protected official acts of the Governor-General and Council from its jurisdiction. It also recognised the relevance of Hindu and Muslim laws in specified private matters. It did not abolish the Supreme Court or merge it with the Company’s adalats.

3. Cornwallis, Bentinck and the reorganisation of courts

Cornwallis reorganised criminal justice in 1790 by placing circuit courts under European judges and bringing the Sadar Nizamat Adalat under the Governor-General and Council at Calcutta. Indian law officers continued to assist, but effective authority shifted towards Company officials. The reforms strengthened central supervision while reducing the independent role of earlier judicial functionaries.

The Cornwallis reforms of 1793, commonly associated with the Cornwallis Code, separated district revenue collection from civil judicial work. Collectors lost their civil judicial functions, which passed to District Judges. Four Provincial Courts of Appeal at Calcutta, Dacca, Murshidabad and Patna formed an intermediate appellate level. District Judges also exercised magisterial responsibilities, so this was not a complete modern separation of the executive and judiciary.

The system created more regular procedures and made official conduct in certain matters subject to judicial scrutiny. However, Cornwallis distrusted Indians’ suitability for higher office, and senior judicial posts were largely reserved for Europeans. Indians worked in subordinate capacities, including as munsifs and legal advisers. Institutional regularity therefore coexisted with racial exclusion.

Under William Bentinck, the cumbersome provincial appellate and circuit arrangements were dismantled, and their functions were redistributed among commissioners and district authorities. Indian participation in subordinate civil adjudication expanded through officers such as principal sadar amins. Separate Sadar courts at Allahabad improved access for the upper provinces. In 1837, after Bentinck’s tenure, Persian ceased to be the official language of judicial and revenue proceedings; English and regional languages assumed larger roles at different levels.

4. Codification, High Courts and the appellate hierarchy

The Charter Act, 1833 provided the institutional basis for systematic law reform. The First Law Commission, appointed in 1834 with Thomas Babington Macaulay as chairman, prepared a draft penal code in 1837. The Indian Penal Code was enacted in 1860 and came into force in 1862. Distinguishing the drafting, enactment and commencement dates is important for objective questions.

Codification extended beyond substantive criminal law. The Code of Civil Procedure, 1859 and Code of Criminal Procedure, 1861 organised litigation and criminal proceedings. The Indian Evidence Act, 1872 standardised rules concerning proof and admissibility, while the Indian Contract Act, 1872 addressed contractual obligations. Later procedural codes replaced earlier versions, notably the Criminal Procedure Code of 1898 and Civil Procedure Code of 1908. Codification promoted consistency but did not eliminate personal-law differences or unequal enforcement.

The Indian High Courts Act, 1861 authorised High Courts that combined the functions of the presidency Supreme Courts and Company Sadar courts. The High Courts at Calcutta, Bombay and Madras were established in 1862; the High Court for the North-Western Provinces followed in 1866 and later moved to Allahabad. The Act’s date should therefore be distinguished from the courts’ establishment dates.

The Judicial Committee of the Privy Council in Britain remained the ultimate appellate authority in qualifying Indian cases. Under the Government of India Act, 1935, the Federal Court began functioning in 1937, initially with jurisdiction over federal disputes, specified constitutional appeals and advisory references. It was not yet the final court for every category of litigation. Privy Council jurisdiction over India ended in 1949, and the Supreme Court of India was inaugurated on 28 January 1950.

5. Rule of law, racial privilege and colonial purposes

Colonial courts introduced recorded proceedings, appellate scrutiny, legal representation and the idea that administrative action could be tested against legal rules. Yet the claim of equality before law was constrained by racial privileges. The Ilbert Bill controversy of 1883 exposed European opposition to allowing qualified Indian judicial officers to try European British subjects in the mofussil. The compromise enacted in 1884 retained a racially privileged jury safeguard rather than establishing unqualified equality.

Judicial institutions also supported colonial economic and political priorities. Enforceable contracts, legally defined property rights and debt recovery assisted commerce and revenue collection. For peasants, litigation could mean high costs, prolonged proceedings and vulnerability to moneylenders or better-resourced litigants. Geographical distance, unfamiliar procedures and language barriers often restricted meaningful access to justice.

The legal system nevertheless supplied Indians with tools to challenge official action and organise political claims. The expansion of the legal profession helped produce prominent nationalist leaders. The appropriate assessment is therefore neither that colonial justice was wholly arbitrary nor that it created impartial equality: it institutionalised important legal procedures while preserving imperial sovereignty, racial distinctions and coercive laws.

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