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Published : July 19, 2010 | Author : suchetamehra87
Category : Law - lawyers & legal Profession | Total Views : 13072 | Rating :

  
suchetamehra87
Sucheta Mehra, 4th year, B.A. LL.B(Hons, Hidayatullah National Law University
 

Development of Adalat System during the time of Warren Hastings

The administration of justice at the time Warren Hasting took over as Governor of Bengal was in a bad shape. It was almost verging on a total collapse. The dual system of government proved very defective and unsatisfactory. The courts had become the instruments of power rather than of justice, useless as means of protection but apt instruments for oppression. On realizing the fact that the system of double government had failed the company authorized the then Governor Warren Hastings to adopt such regulations and pursue such measures as shall at once ensure every possible advantage to the Company and free the ryots from the oppression of Zamindars and petty tyrants.

Warren Hastings hence proceeded to make major changes in the administration of justice. This paper work views the various reforms made by Warren Hastings during his time in India. This administration of justice maybe studied in four stages. To start with Warren Hastings realized the very fact that an impartial and regular administration of justice was extremely essential for creating conditions for a better collection of land revenue. Thus changes were made in regard to civil and criminal justice while various other provisions were also introduced. Moreover one of the major development which took place was that the three presidencies—Bengal, Bombay, and Madras— were divided into a number of districts for the betterment of administration. Lastly, the appointment of Impey helped in fulfilling the need of reforming the judicial system under the control and supervision of a powerful authority. In fulfillment of his duties, his work of compiling the Civil Procedure Code was quite recommendable. It was for the first time that the law was put on solid and certain grounds so that the people could know as to what the procedure of courts was.

Administration Of Justice: First Stage
The Judicial Plan of 1772 as been formulated by Warren Hasting consisted of 37 regulations dealing with civil and criminal laws. It was the first Anglo-Indian Code, which worked out on the basis of experience and common observations. An endeavour was made to adopt it to the manners and understandings of the people and exigencies of the country, adhering as closely as possible to their ancient usages and institutions. The idea was to retain, as far as possible, the native magistracy and codes of law, recorded and oral, to which the people had become accustomed. The plan aimed at correcting the defects without destroying the traditions of the local systems. Thus the diwani area of Bengal, Bihar, and Orissa was divided into several districts, each with an English collector as its head. This ‘district’ was the main administrative unit in the plan. The main features of Judicial Plan of 1772 may be explained under the following headings:

Civil Justice: A Mofussil Diwani Adalat was established in each district to decide civil cases. The collector was the judge of this court. The court took cognizance of all civil cases including property, inheritance, succession, caste, marriage, contracts, accounts etc. In the suits regarding inheritance, marriage, caste and other religious usages and institutions, the Hindu law was applicable to the Hindus while the laws of Koran was applied to the Mohammedans. The collector in matters of Hindus and Muslims was helped by pandits and kazis respectively who expounded the law. Appeals from these courts were to be heard by the Sadar Diwani Adalat at Calcutta where the subject matter of the case exceeded Rs. 500. This court comprised Governor as its President and at least two members of the council aided by Diwan Treasury and Chief Kanungos.[1]

Criminal Justice: A Mofussil Faujdari (or Nizamat) Adalat was established in each district for the trial of crimes and misdemeanours.[2] This court was assisted by a Kazi or Mufti and two Maulvies who expounded the law, while the Collector had a general supervision over the court. The court had full power to decide and punish all criminal cases though they were not empowered to award death sentence. In such cases, the court’s decision was submitted to Sadar Nizamat Adalat for confirmation and finally to the Nawab for his sentence.

Sadar Nizamat Adalat, established at Calcutta, was presided by an Indian judge known as Daroga-i-Adalat who was to be assisted by the chief Kazi, chief Mufti and three Maulvies to hear the appeals from the Faujdari Adalat.

Revenue Administration: The whole revenue system was reorganized under the Hastings plan of 1772. The revenue Boards at Murshidabad and Patna were abolished and a supreme authority called the Board of Revenue was set up at Calcutta which consisted of the Governor and all the members of the Council. The Treasury was also shifted to Calcutta. Further, the district supervisors were appointed as Collectors of revenue and also native Naib Diwans as heads of the native executive in districts.[3]

Moreover, the Board of Revenue comprising Governor and his Councilors at Calcutta sat twice a week for issuing necessary orders and instructions to the Collectors of Districts and inspecting, auditing, and passing the revenue accounts.

The plan of 1772 was in many respects a boon to the people at that time. The change in judicial system brought back the confidence of the people in the government and the justice. However, a grave defect in the plan was that the Collector acted as the administrator; the Judge and the Magistrate in the district i.e. there was over-centralisation of powers in a single official.[4]

Miscellaneous Provisions: A few provisions were made to promote pure and impartial justice. All cases were to be heard in open court. All adalats were to maintain proper registers and records. District adalats were to transmit abstracts of their records to Sadar Adalats. This precaution was necessary so as to discourage judicial officers from misusing their power. To make justice inexpensive, the old vexatious impositions on administration of justice were abolished and moderate fees were prescribed for trial of civil cases which was bound to give relief to people. To supplement the work of the courts, the method of arbitration was also provided for.

Despite the merits of Judicial Plan of 1772, it had certain demerits which are stated as follows:
One of the major defects of the Plan was that there was over-centralization of powers in a single official, namely, the Collector. He was overburdened with heavy work as he was singularly required to shoulder the responsibility as an administrator, revenue collector, civil judge and a magistrate in his District.
The Judicial Plan had a limited application only in the territory of Bengal, Bihar and Orissa. It was based on an erroneous assumption of Hastings that Indian population consisted of only the Hindus and Muslims. There were other communities and races for which there was no provision made in the Judicial Plan.[5]Though the functioning of Adalats was under the supervision and control of the Sadar Adalat at Calcutta, but in absence of adequate means of communications it was almost impossible for the government at Calcutta to keep a constant watch on the working of the Collectors of the districts. In absence of an effective control, the Collectors indulged in private trading and misused their position and power for personal gains.
The judges of the courts being Englishmen, they did not have knowledge of personal laws of Hindus and Muslims. Though native laws officers were appointed to assist the English judges, but they could easily misguide the judges by deliberately misinterpreting the provisions of the Quran and Shastras.
The functions of revenue collection and civil administration were combined in a single official, the Collector. Therefore there was no separation between revenue collection and civil administration. Obviously, the Collector paid more attention to revenue collection than the civil administration.

Administration Of Justice: Second Stage
The abolition of the institution of Collector in 1773 on the advice of the Court of Directors of the Company in England up-set the judicial arrangement of 1772 and a new Plan became an urgent need of the time. Warren Hastings prepared new Plan on November 23, 1773 which was implemented in January 1774.[6]The various changes made in regard to revenue, civil justice, criminal reforms are as follows:

Revenue: Collectors were re-called from the districts and in their place an Indian officer, called Diwan or Amil, was appointed. He was to act as a judge of the Mofussil Diwani Adalat and collected the land revenue also. The entire Mofussil area in Bengal, Bihar and Orissa was divided into six divisions with the Headquarters as Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and Patna.[7] Each division had a Provincial Council consisting of a Chief and four senior servants of the Company. A Committee of Revenue was instituted at Calcutta for superintending that Division, consisting of two members of the Council and three senior servants, assisted by a Diwan and others. The Councils and the Committee were to supervise the collection of revenue in their Divisions. Indian Naib Diwans were appointed in the districts under each Provincial Council to look after the same work. Complaints against the Head Farmers, Naib Diwans, Zamindars and other principal officers of the government, relating to their conduct in the revenue, were to be decided by the Provincial Councils. Aggrieved parties might ultimately go to the Board of Revenue at Calcutta.

Civil Justice: The provisions relating to appeals in civil cases were also considerably liberalised under the plan of 1774. Now all cases decided by the Mofussil Diwani Adalats were appealable to the Provincial Council irrespective of the value of the subject matter of the suit. There was also a provision for second appeal to the Sadar Diwani Adalat in cases exceeding the value of Rs. 1000/-.[8]
Criminal Reforms: The Officers of the Faujdari Adalats were forbidden to hold farms or other offices in the Mofussil and were obliged to reside in their districts on pain of forfeiting their employments. Complaints against them were to be lodged with the Governor-General who would refer them to the Sadar Nizamat Adalat for inquiry and determination.

Although the new system was an improvement over the earlier one, the change did not give good results for long. The Council took the place of the Collector in creating the difficulties and monopolising the trade within its jurisdiction. Warren Hastings detected this defect very soon but he could not make any change till 1780 when entirely a new modified system was established.

Administration of Justice: Third Stage
The defects of the system set up in 1774 were seen in the Patna Case[9] which is concerned with the conflict between the jurisdiction of Supreme Court and function of adalat in mofussil areas.

As it was in practice those days, the Mofussil Adalat as well as the Provincial Council employed services of Kazis and Maulabis to interpret the Muslim law. The judicial commission arrived at a decision after taking into account the consultation of the Maulabis and Kazis. Thus it became a practice to neglect judicial work.

In this case, the Maulabis and Kazis were given the power to take the evidence of the case and arrive to a decision. No established law was followed while taking the evidence and the Provincial Council passed a judgement based on the evidence collected by irregular procedure.

The Supreme Court held that the Provincial Council did not delegate its judicial decisions according to the procedures held by the Supreme Court. Thus an order was passed by the Supreme Court to send the wrong-doers to jail.

The decisions of the Supreme Court were criticized to a large extent. Following this, the work in Mofussil Adalat came to a halt because no officers in this adalat were ready to take up judicial work as they will have to go to jail. The work of revenue collection also suffered because most of the revenue officers left their jobs.

The defect when came to the knowledge of Warren Hastings, could not continue any longer and he remedied it by giving a new judicial plan promulgated on 11 April 1780.[10]
The basic feature of this plan was the separation of revenue matters from judicial matters. Henceforth, there were established separate authorities

(a) To deal with the collection of land revenue and to decide the disputes arising there from and
(b) For the pur­pose of deciding other disputes.

Under this system the provincial councils were left only with the function of collecting the land revenue and deciding revenue disputes and other judicial functions were taken away from their hands.

Diwani Adalat
A new court, called the Provincial Court of Diwani Adalat was established at each of the headquarters of the six divisions. This Adalat was presided over by an English covenanted servant of the Company who was called the Superintendent of the Diwani Adalat. He was to be appointed by the Governor-General and Council. This Court was to hold its sittings thrice a week and decide civil cases pertaining to property, inheritance and contracts. It was also empowered to hear cases relating to inheritance and succession of Zamindari and Talukedari which were hitherto within the purview of the Governor and Council. The decision of the Provincial Court of Diwani Adalat in cases upto the value of Rs.1000/- was final and in cases exceeding this value, an appeal lay to the Sadar Diwani Adalat at Calcutta which consisted of the Governor General and Council.

The plan of 1780 was certainly a great improvement upon the plan of l774.

Its main merit lay in its effecting the separation of the judicial from the executive functions. It was a welcome change. The plan, however, suffered from defects also.

The Superintendents of the Diwani Adalats were not selected from the senior servants of the Company. Some of them were illiterate, ignorant of the Eastern languages and most extravagant, dissipated young men.

There was a tendency of the new Adalats to come into conflict with the Provincial Councils. The Governor-General-in-Council had no time to sit at the Sadar Court to hear appeals and supervise the work of these Courts. Without the support and control of some powerful authority, it was impossible for them even to subsist; there was possibility of their sinking into contempt or becoming instruments of oppression.
There were only six Diwani Adalats. This number was very small in a vast area of Bengal, Bihar and Orissa. This resulted into great expense on the part of the suitors, waste of their time and energy and inconveniences they suffered from, on account of long journeys. Even those persons, whose cases, not exceeding Rs. 100 in value, were referred to Zamindars or public officers, had to come at least once to the Divisional Headquarters for such reference. The Zamindars or public officers as honorary Judges. There was thus a danger of their abusing the authority to their own advantage. Further the paucity of the Courts put a very heavy strain on the Diwani Adalats.

The Provincial Council which was left only with revenue functions also had the power to decide the disputes relating to revenue matters and to that extent it worked as a court in its own cause which was against the principles of natural justice.
Appointment of Impey at Sadar Diwani Adalat:

There was an urgent need of reforming the judicial system under the control and supervision of a powerful authority. From the beginning, the business of the Sadar Diwani Adalats was not only to receive appeals from the inferior Courts in all cases exceeding a certain amount but to receive and revise their proceedings, to attend to their conduct, to remedy their defects and to form generally such regulations and checks as experience should prove to be necessary to the purpose of their institution. The Governor-General and Council, who previously constituted the Sadar Diwani Adalat, admitted their incapacity of exercising these powers and expressly stipulated that Chief Justice Sir Elijah lmpey should act as the sole Judge of the Sadar Diwani Adalat on a salary at their pleasure. They thought that this would lessen the tension between the Council and the Court, would facilitate and give vigour to the course of justice, lessen the burden of the Council and add, to its leisure for occupations more urgent and better suited to the genius and principles of Government. The Governor-General and the Councillors were non-lawyers. Impey, being an experienced and trained lawyer was expected to discharge judicial functions in a far better way and curb out evils from the judicial establishment of the Company.[11]

Elijah Impey was, therefore, appointed the sole Judge of the Sadar Diwani Adalat in October, 1780. He continued in this office till November, 1782 when he was recalled to England. In fulfillment of his new duties, Impey prepared thirteen articles of Regulations for the guidance of the Civil Courts. They were afterwards incorporated, with additions and amendments, in a revised Code, consisting of ninety-five articles, which was passed in July, 1781. This was the first Civil Procedure Code of India. The aims were to explain such rules, orders, and regulations as might be ambiguous, to revoke such as might be repugnant or obsolete to frame a consistent Code, to formulate the procedure and jurisdiction of the civil courts, to prescribe a general table of fees, to make the law of civil procedure cognizable to the people, to provide for arbitration and appeals to the Sadar Diwani Adalat, to provide for the limitation of suits, giving in most cases a term of twelve years, to protect the litigating people from the extortions or frauds of the unscrupulous officers of the Courts, and so on.

Reforms by Impey:
Sir Impey remained in his office for about a year but during this time he made very important reforms in the administration of judiciary of that time. He issued regulations for the improvement of all the courts existing in the Mofussil area. By those regulations the following new changes were made.

1. The Diwani Adalat at the divisions were directed to hear all the cases in the open court after administering proper oath to the witnesses. The law officers should be used only for the pur­pose of expounding the law on the facts which the court had deci­ded, i.e. the law officers had no power to decide the facts or hear the witnesses or the parties. The procedure which was found to have been followed in Patna Case of reporting the matter to the court by the law officers was stopped by this Regulation.

2. The number of the Diwani Adalats was increased from 6 to 18 so as to avoid the inconvenience to the people coming from long distances and also to reduce the arrears of work.

3. The most distinguished work which Impey did was the compilation of a Civil procedure Code which was first of its kind ever introduced in this country. The Code was promulgated by the Governor General and Council on 5 July 1781. Although the Code did not make very far reaching Changes, it put the law on solid and certain grounds so that the people could know as to what the procedure of courts was. It also bound down the courts to follow the procedure specified in it. The Code consisted of 95 clauses.

4. The provision regarding the application of personal laws in certain categories of cases viz., inheritance, marriage, caste and other religious usages or institutions was incomplete so far as the rule of decision in other cases was concerned. Besides, adding the word 'succession' to the word 'inheritance', Impey filled up the gap by providing that in all cases for which no specific directions were given, the Sadar Diwani Adalat and the Mofussil Diwani Adalats were to act according to justice, equity and good conscience, This was a remarkable provision which completed the rule of decision in all civil cases of Hindus and Mohammedans.

5. Another important feature of the Plan was putting the Sadar Diwani Adalat on a· sounder basis. Impey brought the union of the powers of a Board of Superintendence with those of a Court of Appeal. Laziness, laxity, impatience and want of method were the faults of which young, inexperienced Judges, devoid of any legal know1edge and having only an imperfect knowledge of languages of their respective huge districts, were guilty. Superintendence was, therefore, as urgent as appeal. The Sadar Diwani Adalat was, therefore, to perform the following functions: (a) To hear appeals from the lower Courts in cases exceeding Rs. 1,000; (b) to decide any matter of civil nature referred to it by the Governor-General-in-Council; (c) to exercise control and supervision over the lower Court, firstly, by receiving an original complaint, cognizable by a lower Court which refuses to entertain it, and then referring it to Mofussil Diwani Adalat for expeditious disposal, and secondly, by suspending a Judge of a lower Court on ground of misconduct and reporting the matter to the Governor-General-in-Council for final decision.

Recall of Impey
The appointment of Impey to the Sadar Diwani Adalat was actually a good step for the reformation of judicial system and he himself also worked very vigorously and sincerely to reform it. But his holding the twin offices of the Chief Justice of the Supreme Court and the Judge of the Sadar Diwani Adalat was not favoured by the authorities in England. They thought it was a violation of The Regulating Act which had established a judicial system at Calcutta independent of all control from the Company. To them, by accepting the judgeship of the Sadar Diwani Adalat, Chief Justice, Impey had put himself under the subordination of the Company from whom he got his appointment and also the salary as judge of the Sadar Diwani Adalat. Although after few months Impey refused to draw his salary as judge of the Sadar Diwani Adalat unless the Lord Chancellor gave him a clearance. His sincerity was doubted in England and he was recalled on May 3, 1782 from his office of judgeship of the Sadar Diwani Adalat as well as from the Chief Justiceship of the Supreme Court. After the recall of Impey the Sadar Diwani Adalat again came into its previous from, i.e., the court was again constituted of Governor General Council.

Though Impey was accused of compromising his judicial independence as a Crown's Judge, and was, therefore, called back, he gave no opportunity to anyone to say that he, as the sole Judge of the Sadar Diwani Adalat, acted in a way which compromised his judicial independence as the Chief Justice of the Supreme Court. Whatever the criticism, his Code was an extraordinary contribution giving new directions to Judges of the Diwani Adalats and litigants. Its compilation was the first attempt of its kind in India, and it made the law of civil procedure certain to some extent. Under the judgeship of Impey the whole judicial system indefinitely became much better. Thus the act of appointing Impey was later regarded as one of the wisest measures which Warren Hastings carried through.

Administration of Justice: Fourth Stage
Under the Plan of 1772, a Sadar Nizamat Adalat was established at Calcutta. In 1775, it was shifted to Murshidabad probably to avoid any interference from, and conflict as to jurisdiction with, the Supreme Court. There it was put under the authority of the Naib-Nazim Reza Khan. In 1776, a plan for criminal justice from Reza Khan was adopted, under which twenty-three Fauzdari Adalats in all were established in the districts. But as the system had once become loose and the Collector or the Governor-General and Council could not get enough time to have an effective control over these courts, they failed to pro­vide justice to the people. Justice was neither given in time nor any principles of justice was taken into consideration. The accused had to remain in detention for years before his trial was finalised. The conditions of prisons were inhuman. There were number of defects in the system which required total overhauling of criminal administration of justice. The Mohammedan law of crimes was also very defective. Warren Hastings was quite conscious of all this and in the year 1781 he drew a scheme for some reforms in the criminal judicial administration.

Reforms in the Criminal Judicature
The following reforms were made by Warren Hastings in the Criminal Judicature:
In order to devise a machinery to arrest criminals and to bring them to trial, the Judges of the Mofussil Diwani Adalats were appointed as Magistrates also. They were, however, not given, for the time being any jurisdiction to try them. They were to apprehend those persons who were suspected of having committed crimes and send them to the nearest Faujdari Adalats for trial with written accusations.


To have an effective supervision over the proceedings of the criminal courts including the Sadar Nizamat Adalat, Warren Hastings created a separate department at Calcutta to receive monthly reports and returns of proceedings, lists of persons apprehended and sent for trials by Magistrates, details of charges leveled against them, and the lists of persons released, convicted, and put in confinement by the criminal courts.

A covenanted servant of the Company was appointed to act under the Governor-General as head of this Department, with the title of the Remembrancer of the Criminal Courts. He was incharge of all the reports dispatched by various Magistrates and courts. He was to analyze these reports, prepare extracts and arrange them in a proper way. This is how a check was to be maintained on all persons entrusted with the administration of criminal justice.


But the control exercised by this officer was very weak and imperfect. The system did not prove to be effective. The Remembrancer depended for information on the reports of various courts and it was not difficult for the latter to manipulate them so as to present a favourable picture of the things and to conceal the real state of affairs from the Government.

In 1782, the number of Faujdari Adalats was reduced from twenty-three to eighteen. While in 1785, for more speedy and effectual administration of criminal justice, the Magistrates were empowered to try petty offences; but in all cases affecting either the life or limb of the accused persons or subjecting them to imprisonment of more than four days or to corporal punishment exceeding fifteen stripes, the Magistrates could not try the accused themselves but to send them to the Faujdari Adalats. This particular provision was made soon after the departure of Warren Hastings to England.[12]

Conclusion
The work of Warren Hastings has left a deep impact on the History of India. Though on one hand his contributions to the administration of justice are appreciable to some extent, but on the other hand the reforms made by him had its own flaws.

Appreciating his contributions, the various reforms implemented by him justify that he was not only a capable administrator but also a great inventive genius. He adopted the method of “trial and error” in uprooting the evils of the existing judicial and executive systems and never hesitated even in taking bold steps to remove such evils. As the first Governor-General he proved himself as one of the most faithful servants of the English East India Company, who played a vital role in further strengthening the foundation, which was earlier laid down by Clive, for the future expansion of the British Empire in India.

Now taking into account his flaws, one may notice that, certain areas like the constitution of criminal courts, the defects and severity of Muslim criminal law, the mode of trial and proceedings in the criminal courts, which mainly required vital reforms and special attention were left untouched by him. While on the other hand, he only touched the fringe of the whole problem of improving the criminal justice.

But considering his limitations which arose due to his conflict with hostile Members of the Council, wavering support of the Company’s Directors in England, antagonistic interests of political parties in England prejudicing his reputation, his failure to implement his ideas and plans in this regard, is justifiable.

Bibliography
Books Referred
· Dr. N.V. Paranjape, Indian Legal & Constitutional History, 5th Edn., Central Law Agency
· M.P Singh, Outlines of Indian Legal & Constitutional History, 7th Edn., Universal Law Publishing Co. Pvt. Ltd.
· Prof. J.K. Mittal, Indian Legal & Constitutional History, 1st Edn., Allahabad Law Agency.
· Prof. M.P.Jain, Outlines of Indian Legal &Constitutional History, 6th Edn., Wadhwa and Company Nagpur.
--------------------------------------------------------------------------------
[1] See, Dr. N.V. Paranjape, Indian Legal & Constitutional History, 5th Edn., Central Law Agency
[2] See, Prof. J.K. Mittal, Indian Legal & Constitutional History, 1st Edn., Allahabad Law Agency, P. 37
[3] Ibid
[4] Supra 1
[5] See, M.P Singh, Outlines of Indian Legal & Constitutional History, 7th Edn., Universal Law Publishing Co. Pvt. Ltd.
[6] Ibid.
[7] See, M.P. Jain, Outlines of Indian Legal History, 6th Edn., Wadhwa and Company Nagpur, P. 65
[8] See, Adalat System in India available at www.findarticles.com
[9] See, Prof. M.P.Jain, Outlines of Indian Legal &Constitutional History, 6th Edn., P.77
[10] Supra 8
[11] See, Prof. J.K. Mittal, Indian Legal & Constitutional History, 1st Edn., Allahabad Law Agency, P. 39
[12] Ibid

Authors contact info - articles The  author can be reached at: suchetamehra87@legalserviceindia.com




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