PRIVY COUNCIL AND FEDERAL COURT: APPEALS AND WORKING OF PRIVY COUNCIL, APPRAISAL OF PRIVY COUNCIL, FEATURES OF FEDERAL COURT

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.  

EVOLUTION AND DEVELOPMENT OF EAST INDIA COMPANY

INTRODUCTION: 

The Indian subcontinent came under the British rule due to an invasive trade policy that led to  struggle for independence lasting two centuries. The initiator of this atrocious invasive policy  came in the form of a trading company that was supposed to set up ports and factories but ended  up making its own private armies and took over the kingdom. The company initiated its stay on  Indian soil on the pretext of trade but soon rose to compete with its own Dutch and French  counterparts, fighting wars and defeating the then rulers of India – Mughals. They were  successful in threatening the weakened Mughal rulers of India and taking over their powers to  begin their own rule over the subcontinent that expanded to Sri Lanka, Burma, Afghanistan and  China. With the help of their infamous ‘Divide and Rule’ mechanisms they attacked the unity of  a much India and took over the entirety of the subcontinent. This rule encompassed major  oppressive and exploitative regimes in the history of mankind ranging from artificial famines  induced to strengthen armies during the first great war to the infamous Jallianwala Bagh  massacre.  

ORIGIN: 

The company was not the first to create trade relations with India, the Spanish and the  Portuguese had been doing the same for decades long before their introduction in the 1580s. The  first incident that linked the East India Company to India was when an English expeditioner, Sir  Walter Raleigh seized a Portuguese carrack in the year 1592. The ship was special and a  behemoth in terms of its size but whet it held in her logbook was more precious than it’s carriage  which was full of exotic metals and jewels. The ship contained information regarding the route to  India, China and Japan. Hence multiple expeditions were ordered by the then Queen Elizabeth I.  Upon landing in India they quickly established friendly relations with the Mughal ruler of that  time, Nuruddin Salim Jahangir. They offered the Sultan, precious European merchandise in 

return for his permission to set up ports and other administrative facilities to carry on trade and  business in his land. But there already existed the Dutch and the Portuguese but the English were  able to overthrow the Portuguese in 1612 in the Battle of Swally (fought at Suvali in Surat).  After the introduction of King James I, the Sultan allowed the English to expand their areas of  operation free from Portuguese interference. In 1634, Jahangir allowed the East India Company  to expand their area of operations to Bengal and then in 1717 completely waived off the customs  tariffs implemented on their trade. Now their only competition were the French and the Dutch  who were reaping huge profits, more than the East India Company. They then sought aide from  the Crown and got charters signed in their favour that granted them autonomy over the territory  of India to operate, mint money, command fortresses, armies and forge alliances, form rules and  regulations be it criminal or civil in the territories granted. Now with their powers multiplied, the  East India Company could wage a war to seize power from the native rulers and fend off the  other foreign traders. However, this attempt to seize power was foiled by the Mughal emperor as  an attack led by his fleet on the port of Bombay led to the Company’s surrender and begging for  forgiveness. Then they were allowed to set up a new base of operations in Calcutta. But in  Calcutta, the East India Company was able to seize control and attempt to slowly take over the  entire subcontinent slowly and steadily.  

TRADE HISTORY: 

The East India Company wanted India all for itself and this was only possible if they were able  to get the Crown and the British Parliament to extend more support to them. The trade business  of Indian goods had rewarded them well, enabling them to build their own estates and  farmhouses back in Britain. These wealthy ex-members of the company now rallied the  Parliament officials forcing them to grant them power to set up private trading firms in India.  Now to obtain political power, they rallied amongst the members of the parliament, back in  England, to issue a deregulating act and they were successful in doing so in the year 1694.  According to this act the company had been granted a license to carry out all forms of trade and  businesses to the ex-members of the company and other rich aristocrats who were residents of  England. Thus, many private traders and trading firms set sail towards India and established  bases. This deregulating act was against the initial Charter that was passed a hundred years ago,  hence annulling it. With the enactment of this new legislation, a new Company backed by the State was formed, named East India Company Trading to the East Indies. This company was  started and majorly supported by the wealthy ex-members of the old company and had now  started competing fiercely for the prime market share trade share coming out of India.  Though it quickly became evident that the old company did not face noticeable competition from  the new company or any other private trading company by 1730 the two companies were merged  and a new treaty was formed between the company and the parliament. The battle between the  French forces and the company in India in the year 1757 sealed the fate of the trade routes for the  next 7 years as the fierce war waged on ending with a resounding defeat of the French. This  limited their trade routes internationally, with Industrial Revolution not being as prevalent in the  French occupied dominions and affecting their Imperialist aspirations. The Seven Years War was  brought to peace with Britain and Prussia winning and enjoying the spoils of war.  

BEGINNING OF THE END OF THE COMPANY’S RULE: 

The Battle of Plassey that was fought in 1757 was a result of the Company hounding the areas  which were left for it to take control. The Bengal area was taken and since the Mughals and  Marathas had been weakened and mostly reduced to paupers, the company now had to assess  their costs. Maintaining such a vast army and a diverse dominion proved to be difficult for the  company. Though they kept proper records and aimed for positive statistics they were unable to  rule over the subcontinent efficiently and soon enough they were at the brink of bankruptcy.  They reached out to the Parliament for aid but this aid of 1773 was in the form of tea regulations  which eased the expenses of the company in the form of taxes but also jumpstarted the American  Revolution. This was the beginning of the company’s failure in India and North America.  Now the company was facing regulations from the British Parliament which was adamant in  taking control over the company and its operations overseas given the breakout of revolutions in  other dominions. This however took a further 20 years to materialize when the Parliament could  take over the Company with the Regulating Act of 1773. This led to the appointment of a five  member committee in Calcutta comprising of a majority of the Crown’s representatives. They  would ultimately make the decisions for the company in the future, taking away the autonomy of  the company. This urgency to take over the proceedings was a direct result of the  mismanagement caused by the company that led to the Bengal Famine of 1770. The first  Governor General appointed was Warren Hasting who spent no time post his appointment to the 

position in consolidating the system and bringing about positive change, making India a proper  country with a definite currency, form of authority and management, transport and domestic  trade and services. Under him, the country also received British Judges and magistrates who  helped shape the initial form of Courts and Judicial Councils, a basic legal framework with a  codified set of rules and regulations. The Charter of 1813 was the final extension given to the  company to operate in India but it had already started showing signs of the Company’s numbered  days in India, for about twenty more years. The Charter deprived the company of its trade  monopoly except in terms of Tea and in trade with China, differentiate between its commercial  and territorial accounts and opened the country to missionaries. With the Industrial Revolution in  Britain picking up pace, the need for a laissez-fare economy was understood. The British  Parliament passed the Government of India Act of 1833, which divested all the commercial  functions of the company on Indian soil and the remainder of its trade monopolies, the Board of  Control headed by the representatives of the Crown were given all powers to head the company,  invested in the Governor General in Council all the power and authority to superintend the  Presidency Governments in all civil and military matters. The most important change brought  about by this act was the inclusion of Indian nationals or native citizens being allowed to hold  office in the company and the introduction of a machinery or a system for the purpose of  codification of laws. Then the English Education Act of 1835 was a minor act passed to promote  the English Education system and culture in the subcontinent but from the funds of the company.  

The final nail in the coffin of the company in India was in the form of the Government of India  Act of 1853 wherein all of British India were to remain under the company’s rule only till the  Crown could take over. The patronage followed by the company while appointing its members  and officers was also put to a stop with the act that now allowed for a system of open  competition that would recruit personnel for positions of civil servants in the company.  

THE LEGACY OF EAST INDIA COMPANY: 

Although the colonial rule of the East India Company was immensely detrimental to the interests  of the common people due to the exploitative nature of governance a s well as tax introduction,  there is no questioning that it has also generated some fascinating positive results. One of the  most important of these was a complete reform of the justice system and the creation of the  Supreme Court. The next significant influence was the implementation of the postal and 

telegraphs system, which the Company had possibly developed for its own benefit. The East  Indian Railway Company was awarded the contract to build a 120-mile railway from Howrah Calcutta to Raniganj in 1849. In India, the transport infrastructure saw changes in leaps and  bounds with the construction of the 21-mile rail line from Bombay to Thane, the first leg of the Bombay-Kalyan Line, 1853. The British have also implemented various social reforms such as  the abolition of unethical indigenous practices by actions such as the Bengal Sati Legislation of  1829 banning the immolation of widows, the Hindu widows Remarriage Act, 1856, allowing  Hindu teenage widows to remarry and not live a life of unjust austerity. It also established a  variety of colleges in the key presidents of Calcutta, Bombay and Madras which has contributed  to enrich young minds, giving them a taste of world literature, philosophy and science and  encouraging native people to take part in civil service assessments and, as a result, to take part in  the servicesiv.  

CONCLUSION:  

The great Indian Revolt of 1857 and the end of the rule of the East India Company over India  just a year later thus led to a new period of British imperialism in Asia. The end of the company's  system meant that, at last, the British state had to assume unequivocal responsibility for the  administration of the former company’s possessions. As a result, new governing bodies were  formed in Asia, were directly accountable to the government and parliament in London, through  the Indian secretary of state and the Indian office. These reforms came hand-in - hand with a new  culture of government, created by the trauma of the revolt. The policy of weakening Indian law,  culture and participation in the machinery of government, which had been implemented in the  last few decades of the Company's rule, was suddenly reversed. An initiative was initiated to  recruit trained Indians to the lower ranks of the Indian Civil Service. The Straits Settlements,  which had been complaining for so long about their poor status under Company law, were finally  given Crown Colony status and placed under the authority of the Colonial Office. Perhaps the  most important changes were the economic effects of the new arrangements. 

By- Devanshi Lohia Amity University, Kolkata.