INTRODUCTION:
If we look at the past of the Indian legal system, it clearly indicates that the Indian legal system is more or less based on the English legal system. Indeed, during the British regime itself, the systematic establishment of Indian judicial institutions, judicial values, rules, etc. has taken place. In addition, the British regime in India has also established a hierarchical judicial structure in India. The highest judicial authority was thus bestowed on the body of jurists, popularly referred to as the ‘Privy Council’. The Privy Council was derived from the King's Council, which was founded during the Middle Ages. In 1540, the Privy Council came into being as a small executive committee which advised the king and administered the government. It advised the sovereign of state affairs and the exercise of royal prerogatives. It was empowered by royal proclamations, orders, directives and informal letters, and also by providing directions and receiving reports from judges who travelled the circuits, hearing cases in cities and towns twice a year. It has played a major role in shaping the new legal structure in India.
ORIGIN AND ESTABLISHMENT OF PRIVY COUNCIL:
Privy Council was a judicial body which had the responsibility of hearing appeals from the courts which existed in British Colony during that time. The root of the Privy Council can be linked back to the Norman era in English. The Supreme Federal Council of Normans, known as the 'Feudal Curia,' served as the Norman Agency to administer England. Gradually with the passing of time, Curia was divided into ‘Curia Regis’ and ‘Magnum Concillium.’
‘Magnum Concillium’ had to deal with executive affairs, while ‘Curia Regis’ had judicial functions. The Curia Regis was a small body composed of high officials of the State, members of the Royal household and some clerks selected by the Crown itself. It was their responsibility to counsel the King in matters of law and to deliver justice. In reality, the Curia Regis was acting as the final Court of Appeal for England and the English Empire. Gradually, the Curia Regis came to be known as the King's advisory body in the area of judicial administration. During the reign of Henry II, the judicial roles of Curia Regis grew immensely and contributed to the establishment of two separate Common Law Courts in England.
The Privy Council was established in the 16th Century and served as the King's advisory body with regard to the affairs of the State. It was based on the royal privilege of the sovereign. The Privy Council used to carry out its function by committees and subcommittees. These committees were not permanent in nature and the members were people with no or little judicial experience. Later, through the Act of 1833 Judicial Committee of British Parliament, the Privy Council was created on a permanent basis. The Act allowed the Privy Council to hear appeals from the British Colonies courts. The quorum of the Judicial Committee of the Privy Council was set at four. It was composed of Lord President, Lord Chancellor and other eminent judges serving in the English courts. Subsequently, the Appellate Jurisdiction Act, 1908 extended this membership of the Judicial Committee to two. According to that clause, two judges of the Indian High Court have been appointed to the Privy Councili.
The judgments of the Judicial Committee used to be laid down in advisory form, but, in practice, the Crown has always acknowledged its advice, and it was impossible to imagine that its report would not be successful. The Privy Council served as a medium into which English ideas had been assimilated under the rules of India. It acted as a bridge between the Indian and English legal systems, through which legal concepts moved from England to India. It was through this body that the common law of England was adopted in India under the British regime as the basis of its legal framework.
Appeals from the Indian courts to the Charters of the Privy Council of 1726 and 1753. The Charter of 1726 gave the Courts in India the right to appeal to the Privy Council. The Charter of 1753, which reorganized the Courts of the Mayor, reaffirmed certain clauses of appeal to the Privy Council through the Courts of the Mayor. Appeals from High Court to Privy Council in all matters except criminal were also provided by the High Court’s Act, 1861.
During its service as India's highest court of appeal for a period of around 200 years, the Privy Council delivered more than 2,500 judgments, and until today these judgments are the source of the law on a range of points in India.
However, there was an increasing demand for the establishment of the Supreme Court in India, as it was felt that the appeal made to the Privy Council was costly and beyond the reach of a common man. More significant was the explanation that it weakened the self-respect of the Indian people. The Government of India Act, 1935, enacted a federal constitution for India, including distribution of powers between the Centre and the constituent units. The Federal Court of India began working on 1 October 1937.
The jurisdiction of the Federal Court was limited to the original jurisdiction wherein disputes arose between the Centre and the member units or disputes between the member units. It has the powers of advisory and appellate jurisdiction where a certificate from the High Court was obtained. Appeals from the Federal Court could go to the Privy Councilii.
COMPOSITION OF PRIVY COUNCIL:
As far as India is concerned, the Privy Council acted as an appeal body since 1726, when the Mayor's Court was established in India. Earlier, the Council used a system of committees and subcommittees to carry out its work. However, the commissions did not have a permanent life and composition, and the bulk of the members were individuals with no judicial experience. It naturally influenced the administration of justice. In 1828, Lord Brougham opposed the constitution of the Privy Council in the light of the degree and value of the authority of the Privy Council. Subsequently, he became Lord Chancellor in 1830 and, under his government, the British Parliament passed the Judicial Committee Act of 1833 with a view to changing the constitution of the Privy Council. In this way, the Privy Council was formally established by the Act of Parliament on 14 August 1833. The Act allowed the Privy Council to hear appeals from the courts of the British Colonies in compliance with the terms of the Act. Accordingly, under this Act, the quorum of the Judicial Committee of the Privy Council was set at four. It is composed of Lord President, Lord Chancellor and other Chancellors holding judicial offices. In 1843, the quorum was reduced to three. The bulk of the quorum was given to the Crown’s recommendations. Subsequently, this membership of the Judicial Committee was expanded by means of the Appellate Jurisdiction Act, 1908iii. It also empowered His Majesty to designate a number of members not exceeding two. They were nothing but the judges of the High Court in British India. Thus, some of the members of the Privy Council were the individual having knowledge of the Indian Laws.
APPEALS:
In the 17th century, certain appeals were favored as a last resort to the King-in-Council. As the British Empire steadily expanded, the pressure on the King-in-Council had expanded. The number of appeals has been increased year by year. There were many laws made up of various colonies and dominions. Appeals made pursuant to such legislative provisions have come to be regarded as "Appeals as of right" where appeals have been sent to the privy council on the basis of the provisions of the laws, acts or charter, that is to say, appeals which may be made as a right to be in a colony and to be governed as subjects of the emperor, while appeals can be appealed at any time can be rejected by the privy council. In any event, although the circumstances of the specific appeal did not comply with the conditions expressly set out in the case of "Appeals as a Right." These appeals were referred to as "Special Leave Appeals.iv"
Appeals are as follows:
1. CHARTERS OF 1726 AND 1753: For the first time in Indian legal history, the Charter of 1726 gave the Courts in India the right to appeal to the Privy Council. The Charter set up three mayor's courts in Calcutta, Madras and Bombay. The clause was made with regard to the first appeal from the rulings of the Mayor's Court to the Governor-in-Council in the respective provinces and the second appeal from the Privy Council in England. Whereas the Charter of 1757, which re-established the Courts of the Mayor, reiterated the terms of the Charter of Appeal to the Privy Council of the Courts of the Mayor
2. THE REGULATING ACT, 1773: This Act allowed the Crown to lay down a Charter for the Establishment of the Supreme Court of Calcutta. Thus, the Charter of 1774 was issued by the Crown in order to create a Supreme Court in Calcutta and to abolish the court of the respective mayor. Section 30 of this Charter provided the right to appeal in civil matters from the judgments of the Supreme Court to the Privy Council, subject to two conditions:
(i) where the amount in question reaches 1000 pagodas (ii) if the appeal is lodged within six months from the date of the ruling.
Similarly, the Mayor's Court of Madras & Bombay was abolished by the Act of 1797 with the Recorders Court and took direct appeals from those Courts to the Privy Council.
3. APPEALS TO PRIVY COUNCIL FROM HIGH COURTS: Under the Indian High Courts Act of 1861, the High Courts were created at 3 provinces. It was the blend of the Courts of Kings and the Courts of Company. This Act provided for the right to appeal from the High Courts to the Privy Council in all its decisions, except in criminal matters. In addition, in some cases, special leave to appeal was given in order to be accredited by the High Courts.
4. APPEALS TO PRIVY COUNCIL FROM FEDERAL COURTS: The Government of India Act, 1935 accommodated the foundation of Federal Court in India. The Federal Court was given select unique purview to choose questions between the Center and constituent Units. The arrangement was made for recording of requests from High Courts to the Federal Court and from Federal Court to the Privy Council. The Federal Court likewise had locale to give extraordinary Leave to Appeal and for such offers an endorsement of the High Court was necessary.
5. ABOLITION OF THE PRIVY COUNCIL: In 1933, the British Government published a White Paper for the establishment of the Supreme Court in India in order to hear an appeal from the High Courts of India. This was the first step in escaping the authority of the Privy Council. After independence, the law on the extension of jurisdiction of the Federal Court was passed in 1948. This Act broadened the jurisdiction of the Federal Court of Appeal and also eliminated the old practice of filing direct appeals from the High Court to the Privy Council with or without special leave. Finally, in 1949, the Indian Government passed the Abolition of the Privy Council Authority Act. This Act also eliminated the power of the Privy Council to consider new appeals and petitions and to dispose of any existing appeals and petitions. It also provided for the transfer of all cases brought before the Privy Council to the Federal Court in India. All the powers of the Privy Council with respect to appeals from the High Court have been bestowed on the Federal Court.
APPRAISAL/ROLE OF THE PRIVY COUNCIL:
The Privy Council has contributed a great deal to the growth of the Indian legal system f or more than two hundred years, the Indian Courts have served the cause of justice before independence. As far as the judicial institution is concerned, the Privy Council was special and unprecedented in all the Courts around the world. It has set out the task of developing the constitution, formulating the legal principles, forming and forming the substantive laws of India. It has also contributed to the adoption of the principle of 'Rule of Law,' on which we have developed the whole theory of our ‘Democratic Constitution’. In addition, it also contributed to the adoption of common law in India, which forms the foundation of almost all existing Indian laws. The role of the Privy Council to personal laws such as Hindu law and Muslim law is also remarkable. It served as a channel through which English legal principles came to be integrated to the framework of Indian law. It has always insisted on upholding the highest standards of fair and judicial procedure, particularly in the field of criminal justice. In this way, the decisions of the Privy Council have enriched Indian jurisprudence in many respects. In this way, the decisions of the Privy Council have enriched Indian jurisprudence in many respects. Its relation to constitutional, personal and commercial law is of great significance. Thus, during the period 1726-1949, and particularly after 1833 and beyond, the Privy Council played a magnificent role in making a unique contribution to Indian legislation and the Indian legal system. The basic principles of the constitution, as laid down by the Privy Council, are now considered to be a pathfinder for the Indian Courtsv.
At present, the Privy Council also has great respect among the Indians as the highest judicial agency, lawyers, judges as well as the Indian people. Any of the principles laid down by the Privy Council are still being observed by the Supreme Court of India. The opinion of the Privy Council is binding on the High Courts in India unless the Supreme Court has ruled otherwise. One such instance can be provided in the form of a 'principle of absolute liability' as suggested by the Supreme Court in the case of oleum gas leak case. Thus, as a whole, the contribution of the Privy Council is considered exceptional for the growth of the Indian Legal System and the Indian Judicial Administration. It has played a significant unifying role in shaping divergent laws in India.
DRAWBACKS: The Privy Council faced the following drawbacks –
1. For a long time, it was staffed only by Englishmen, who had little knowledge of it. 2. The position of the Privy Council was far away from normal in England 3. All of this has put the poor man in India in tough circumstances to find justice. 4. Subjection of jurisdiction to international judicial agencies, i.e. the Privy Council was seen as a sign of slavery.
CONCLUSION:
It reveals that the Privy Council has made an important contribution to the growth of the Indian legal system and judicial institutions. It has incorporated a variety of basic legal concepts in the Indian legal system. It has influenced the judicial institutions in India. As a whole, its position is very important in the growth of the legal system in India as it currently exists. The Federal Court has served for a brief period of 12 years. But it left a lasting mark on the legal history of India. It was the First Supreme Court of Justice. It was also a case of broad jurisdiction of the First All-India Court. Between 1937 and 1950, two English and six Indian justices performed their services. All of them had the unusual distinction that they were the Federal Court of India. They have maintained noble traditions. They also contributed a great deal to the establishment of sound federal justice in India. They have also set up great traditions of democracy, impartiality and dignity inherited from their successor to the Supreme Court of India.
By- Devanshi Lohia
Amity University, Kolkata.
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