Some Question Answer of Legal History of BD

Legal History and Legal System of Bangladesh

 

  1. What do you mean by jurisdiction of Privy Council?

The Privy Council had its jurisdiction over various dominions and colonies. It had all types of jurisdiction i.e. civil and criminal; and had control over all the judicial institutions. All disputes were adjudicated by the Privy Council. From 1726 up to 1949, it was the supreme appellate authority for India. It applied diverse system of law apart from British Law in administering justice. It had a judicial committee whose job was to advice the King-in council in criminal cases. In 1941, the Privy Council lost all powers of jurisdiction over cases arising in England.

 

Why it was considered as the superior court?

The Indian sub-continent came under the direct rule of the Queen in 1857 after Sipahi Mutiny.  Before that the servants of the company were in administration of this sub-continent. This company was functioning under various charters or Acts of Parliament. Initially, the power given to the company was 'business' in nature but it changed to 'force' or territorial power after 1661. The company established many courts to discharge judicial function. The Governor General was the highest court in this sub-continent within the presidency. In respect of civil matters an appeal was allowed to the 'Privy Council' under certain conditions e.g. suits valuable over 1,000 pagodas. In criminal matters the prior permission of the Governor General in council was necessary to file an appeal to the Privy Council.

In England, the Privy Council was established by the Norman kings in 1066. It became the superior court in hearing appeals. The king or queen was discharging his/her function with the help of the Lords. As India became the colony of England, it came under the jurisdiction of the queen. So, the queen as the 'fountain of justice' exercised her jurisdiction as the queen of England as well as the 'Head of the state'.

 

In what kind of cases/suits the Privy Council exercised its jurisdiction?

The Privy Council exercised its jurisdiction over both civil and criminal matters. It applied English law as well as diverse system of law. It was regarded as the last resort throughout the realm of the king.

 

How the jurisdiction of the Privy Council was abolished?

The Privy Council was abolished by the Privy Council Jurisdiction Act, 1949 which provided that no more appeal to the Privy Council would be allowed. The six pending cases were returned to the Federal Court of India and it was the end of jurisdiction of Privy Council over India. However, earlier at 1941, it lost all of its powers of jurisdiction over cases arising in England. So, after its function was no more over colonial countries as well as England, it was abolished.

 

  1. Write down the functions & jurisdiction of the High court established in 1861?

 

The High Court of 1861 had civil, criminal and other jurisdictions. The jurisdiction of High Court is stated below:

 

 

 

i) Civil jurisdiction-

    Ordinary original civil jurisdiction: The High Court exercised its ordinary original jurisdiction within the local limits set by the legislative. It tried every case except those which are valuable under Rs. 100.

 

    Extraordinary original civil jurisdiction: The High Court had the right to try and determine or remove any suit pending before any court, whenever it was thought proper to do so.

    Appellate civil jurisdiction: The High Court entertained appeals from the civil courts of the Bengal division and other courts under its control.

    Other jurisdiction: The High Court had the same power and authority with respect of the estate of the infants, lunatics and idiots as it was vested on Supreme Court before.

 

ii) Criminal jurisdiction-

     Ordinary original criminal jurisdiction: The High Court had the original criminal jurisdiction within the local limits set by the legislative.

      Extraordinary original criminal jurisdiction: It had jurisdiction over subjects who were formerly under the jurisdiction of the Sadar Nizamat Adalat.

      Appellate criminal jurisdiction: The High Court heard and determined all references made to it by session judges. It might revise proceedings of the lower criminal courts.

     

iii) Special jurisdiction-

      a) Testamentary and intestate jurisdiction- The High Court had the same jurisdiction as of the Supreme Court previously. It was authorized to grant probates of wills and testaments and letter of administration of the goods and all other effects whatsoever of deceased persons.

     b) Matrimonial jurisdiction- in 1869 such a jurisdiction of the High Court was extended to her Majesty's subjects professing the Christian religion.

     c) Admiralty and vice-Admiralty jurisdiction- The High Court was conferred same civil, criminal and maritime jurisdiction in the capacity of a Court of Admiralty and Vice-Admiralty.

       Apart from these, the High Court could transfer cases from one court to another. It had review jurisdiction too.


 What was the difference between the Govt. of India Act, 1911 and the Govt. of India Act, 1915?

 Difference between High Courts Act, 1911, Govt. of India Act, 1915 and Govt. of India Act, 1935 is stated below:

Subject of difference

Act of 1911

Act of 1915

Act of 1935

Number of Judges

20 including the CJ

20 including the CJ

no fixed number

Addl. Judges

For 2 years

For 2 years

-

Salary of Judges

to be paid from the revenues of India

-

salaries, allowance and pensions would be fixed by His Majesty

Qualification

-

i) Barristers who had at least five years standing.

ii) The members of covenanted civil service who had not less than 10 years standing and served as 'Zillah Judges' for at least 3 years.

iii) who held the judicial office not inferior to that of Principal Sadar Ameen or Judge of a Small Cause Court for not less than five years.

iv) who have been pleaders at Sadar Court or High Court for not less than 10 years.

Barristers, advocates or a member of Indian civil service of ten years standing. If he remained 3 years as Judge, he would be qualified to be CJ.

Jurisdiction

-

Original, Appellate, including admiralty jurisdiction. It was declared Court of Record. It had supervision over all subordinate courts.

Jurisdiction was the same as that of the Act of 1935. Also, had the revenue jurisdiction.

Court of Record

-

It was declared as the court of record.

It was declared as the court of record.

Supervision

-

It had powers of supervision over all subordinate courts.

-

Establishment

His Majesty was empowered to establish Additional High Courts within the limits of the dominion.

His Majesty was empowered to establish new High Courts in any territory.

 

Tenure

-

during Her Majesty's pleasure

up to 60 years of age. He could be removed earlier by his Majesty only on the ground of misbehavior or on infirmity of mind & body.

Appeal

-

-

To the Federal Court

 

Why the government of India Act, 1935 is famous in the legal history of India?

 

Government of India Act, 1935 is famous for the following reasons-

i) Federal Court was established

ii) The provision of Emergency was introduced for the first time in Indian legal history

iii) Federal Court was a central court of India. Legal professionals of this court were able to practice in any court of India. So, the legal profession was united under one court.

 

4.    How many times Lord Cornwallis came to India?

 

Lord Cornwallis came to India three times, once at September, 1786; second time he came to India at 1793 for a short period of time and lastly at July, 1805. Every time he came to India, he came as Governor General.

 

What is Cornwallis Code?

 

Cornwallis Code is a body of forty eight enactments which was printed and issued on 1st May, 1793 prepared by Lord Cornwallis, is known as Cornwallis Code.

After gaining sufficient experience in Indian affairs from 1787 to 1790, Cornwallis realized that the changed conditions required major changes in the civil and revenue set-up. In 1793, he realized that the time is ripe enough to introduce judicial reforms in Bengal, Bihar and Orissa.

The Cornwallis Code dealt with commercial systems, with civil and criminal justice, with the police and with the land revenue. The Regulations were intended to ensure disciplined administration and prevent any return to the chaos and abuses of the past.

(+ have to write some regulations from page 119-121)

 

Why Lord Cornwallis is famous?

Lord Cornwallis is famous for various reasons, viz-

i) He made reforms in the administrative, financial and judicial systems of British India to make it more effective.

ii) He declared the 'Cornwallis Code' to ensure disciplined administration.

iii) For Permanent Settlement Act passed by him.

 

Write down the reforms made by Lord Cornwallis in civil and criminal justice of India.

One of the missions given to Lord Cornwallis was to introduce reforms in the judicial systems. Accordingly he introduced judicial reforms in three installments- firstly in 1787, secondly in 1790 and lastly in 1793.

 

Judicial reforms in 1787-

As many arguments were made in favor of merger of the revenue and judicial functions in one hand, Lord Cornwallis amalgamated revenue and judicial functions through two regulations, one on 8th June, the other on 27th June, 1787.

Regulations of June 8, 1787:

i) 36 districts were reduced to 23

ii) in each district, a Company's English Covenanted servant was appointed as collector

iii) the collector dealt with the revenue cases arose in Mal Adalat

iv) the salary of the collector was increased

v) the collector was not to blend his various functions; as magistrate or judge.

 

Regulations of June 27, 1787:

i) The office of the Mofussil Diwani Adalat was also to be held by the Collector to decide civil cases.

ii) Inheritance and succession, marriage, caste and other religious usages and institutions to be decided by the personal law of the parties

iii) The collector was also act as the Magistrate of the District.

 

Judicial Reforms of 1790-

Cornwallis admitted that-'the administration of criminal justice was oppressive, unjust and beyond measure corrupt....' So, on 3rd December 1790, Cornwallis worked out a new scheme of criminal justice, which had a system of courts; the Sadar Nizamat Adalat, the Courts of Circuit and the Courts of Magistrates. He also introduced certain very important reforms in the Mohammedan criminal law.

 

Judicial Reforms of 1793-

In 1793, Cornwallis introduced his last and the most famous judicial reforms in Bengal, Bihar and Orissa. The new judicial plan contained many radical innovations and constituted a definite break from the past in many respects. He introduced Cornwallis Code consisted of 48 Regulations on 1st May, 1793. Some of the Regulations were-

i) Civil and revenue functions were separated

ii) Diwani Adalats were re-organized

iii) Sub-ordinates courts were established

iv) Registrar's Court was established

v) Native law officers were appointed to assist all the courts

vi) Permanent settlement on land revenue was sanctioned

 

 

 

 

 

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