The Company Rule And Early Legislative Experiments In India - A Study
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THE COMPANY RULE AND EARLY LEGISLATIVE
EXPERIMENTS IN INDIA: A STUDY
Dr. Manjit Singh, Assistant Professor, Department of Laws, Guru Nanak Dev University, Amritsar Ramandeep Singh, Research Scholar, Department of Laws, Guru Nanak Dev University, Amritsar
ABSTRACT
The legislative developments underwent during the rule of East India Company in British India which stretches from 1661 to 1857 laid the foundation of civil law in India. The company rule was ended in 1858 with the transfer of legislative powers to the British Crown. The progressive approach of the British Company toward the administration of presidency towns resulted in early legislative experiments in India. In this article, the legal developments during the company’s rule are divided into two phases; one from 1661 to 1726 and the second from 1773 to 1858. The legal events during this period reflected the transition and adaptation of British legal principles blending with the native Indian customs and traditions. This article emphasized several acts and regulations made during this period to contemplate their significance in the contemporary legislative framework of India.
The present legal system of India is simply the enhanced rendition of the legislative framework developed during the rule of the British Company. In the absence of contributions by such legal developments, the vision of lawmakers for a comprehensive civil legal system would have been a mere illusion. These experiments during the Company rule shape the legal and administrative landscape for the systematic governance and administration of justice.
1. INTRODUCTION
The development of civil law in India has sailed through various highs and lows which started after the advent of Britishers in India. Before the arrival of the Britishers, the natives of India were governed by the legal system of the Mughals which suffered from several deficiencies due to the close relation of law with religious orders. The Englishmen who arrived in India were subjected only to the sovereignty of the British Crown and governed by English law. Their settlements in Indian towns were not to be governed by the Mughal government and they were allowed to form their governments to administer their settlements by English law. Still, this law did not apply to the local inhabitants until the Charter Act of 1661 was passed.
The Charter Act of 1661 authorised the Governor and council of the then-existing presidencies to implement English law on all the people living in British settlements whether they be Englishmen or native inhabitants. There was no codified law in India therefore, the judges apply the principles of justice, equity and good conscience in administering justice in disputes between the parties belonging to India. The Britishers relied upon the development of an effective judicial system for the evolution of civil laws and procedures as they believed in the development of civil law in the form of judge-made law. The Charter Act of 1726 made the common law and statutory law of England applicable to all the presidency towns i. e. , Madras, Bombay and Calcutta.
The East India Company was authorized to make laws for the administration of presidency towns therefore, the laws and regulations made during the era of Company rule in India were limited only to administration rather than codification of laws. 1 The civil matters were adjudicated as per the personal law of the parties but the criminal matters were adjudicated only based on Muslim law irrespective of the personal law of the parties. It was only after the 17th century that the legal system of India evolved in line with English law, but the present legislative framework of India started to flourish only after the end of Company rule and the beginning of Crown rule. The presidency towns during the Company rule were devoid of civil law as present today. 2
2. APPLICATION OF ENGLISH LAW IN PRESIDENCY TOWNS
The general rule that prevailed in the era of British settlement in India was that the European
1 Rashika Chadda, Evolution of Law – A Short History of Indian Legal Theory, LAWYERS CLUB INDIA (May
16, 2011) https://www.lawyersclubindia.com/articles/Evolution-of-Law-A-short-History-of-Indian-Legal- Theory--3739.asp
2 Aparna Shukla, The Evolution of Legal system in India, LAWCTOPUS (Aug 31, 2021)
https://lawctopus.com/clatalogue/ailet-pg/the-evolution-of-legal-system-in-india/
settlers had to be governed by the law of settling country but India was an exception to this general rule as the Britishers were permitted by Indian rulers to be governed by their law and to form self-government. Therefore, all the Englishmen living in India were subjected to the law of England but the native Indians were not governed by English law. Gradually, English law extended to all the persons living in the presidency town by passing of Charters, especially the Charter Act of 1661 and 1726.
2.1 Charter Act of 1661 – This Charter was first in respect of the implementation of English
law to all Englishmen and other persons living under them in the presidency towns. The matters involving civil and criminal matters were to be judged following the statutory and common law of England. At the time of the passing of this Charter, Madras was the only presidency town under the administration of the Company therefore, it was not possible to implement the provision of this charter uniformly in other towns which were found later. English law was implemented in the presidency of Bombay with the Charter Act of 1668 but still, uniformity had not been achieved since the presidency of Calcutta did not come into existence at that time.3
2.2 Charter Act of 1726 – The provisions of this Charter made the statutory and common law
of Britain applicable to India which was prevailing before 1726 and was not implemented before by the orders of the Governor-General in Council or British Parliament. The statutory law of England formulated after 1726 was to be implemented in India either expressly or by necessary implication. In the cases involving matters relating to ecclesiastical and admiralty law, the laws framed by such courts were the guiding principles in such cases. The personal law of the parties was applied in the cases which involved matters relating to inheritance, succession, rents, goods and other contracts and dealings. In all other cases, where the parties did not belong to the Hindu or Muslim religion, the English law was made applicable. The provisions of this charter were uniformly implemented for all presidency towns.
The extent of legislative powers of the Governor- General in Council was limited to framing regulations for the administration of the towns. 4
3 M.P. JAIN, OUTLINES OF INDIAN LEGAL HISTORY 356 (University of Delhi Press 1952)
4 Rohan Priyam, Civil, Criminal and Personal Laws During British Times, 3(6) IJLMH 1095, 1105-1106 (2020)
3. LEGISLATIVE COMPETENCE OF COMPANY IN PRESIDENCY TOWNS
BEFORE 1773
The role of East India Company in presidency towns was not limited to a trading firm but it was granted the authority of self-government by the rulers of the jurisdictions of presidency towns. The Company set up its first factory in Surat in 1612 which was under the jurisdiction of the Mughal rule therefore, the territorial law of Surat was Muslim law. Considering the refutation of the servants of the Company, the Mughal emperor Jahangir was approached by Sir Thomas Roe, the British Ambassador for the proclamation of a Farman granting concession to the Englishmen from imposition of Muslim law. Thereon, Jahangir granted the authority to East India Company to set up self-government within their settlement.
The effect of this order was that the disputes between British subjects were to be decided by Courts set up by them and autonomy in the matters of religion and legal affairs for Company administration was also granted to them. Any matter involving the English and native parties was dealt with by the local judicial authority. This created a dual system of law in Surat. 5 After Surat, the Company acquired the territory of Madras in 1639 and also built a fortified factory there. Madras was made a presidency town in 1652 but this status was again reinstated in 1684 after it was regressed in 1655. A self-government was set up in Madras with a Governor and council on its head.
6 Thereafter, the Company also acquired the territory of the Bombay Islands in the form of a gift through a treaty of marriage between British King Charles II and the daughter of Portuguese King John IV, Catherine de Braganza. After Bombay, the Company also acquired the territory of Calcutta from the Mughal Viceroy of Bengal, Ibrahim Khan with implied authority to build a fortified factory. Calcutta was the third and last presidency town of the Company. Before the Regulating Act of 1773, the Company had limited powers to legislate certain laws, ordinances, rules and regulations which are necessary and reasonable for the good governance of the presidency towns and should not be contrary to the statutory laws of England.
The Charters issued by the Crown in 1600, 1609, 1661, 1698 and 1726 authorized the company to organize the judicial systems of presidency towns without conferring any power concerning legislating beyond the scope of English law. However, the Charter Act of 1726 brought
5 MRINMAYA CHAUDHURI ET. AL., GLIMPSES OF THE JUDICIAL SYSTEM OF PRESIDENCY
TOWNS (1687-1973), 46 (Regency Publications 2006).
6 History of Madras Presidency, WIKIPEDIA (April 14, 2024, 06:49 UTC)
https://en.wikipedia.org/wiki/History_of_Madras_Presidency.
uniformity in the judicial system of all three presidencies by the establishment of the Mayor’s Court in all of them but the power of legislation with the Governor and Council was not more than promulgating laws, ordinances, and rules and regulations for good government which shall not be repugnant to the laws of England. The legislative powers were exercised in 1772 to enforce the substantive and procedural rules relating to civil and criminal laws in the presidency of Calcutta for the first time.7
4. EXPANSION OF LEGISLATIVE POWER OF THE COMPANY AFTER 1773
Alexander Dow, lieutenant-colonel of the Company stated in Enquiry into the State of Bengal (1772) that “to leave the natives to their laws would be to consign them to anarchy and confusion” after the Plan of 1772 which expressly declared that Hindus and Muslims were to be governed by their personal laws. There were two views with regard to the Plan of 1772, one, suggested by Alexander Dow to enforce English law on the natives for the peace and prosperity of the country and second, suggested by Warren Hastings, the new Governor of Bengal to avoid replacing the Indian law with the law of England. Warren Hasting desired the Company to stand as Dewan. Later on, Hasting agreed regarding the need for codification of laws inclusive of laws and customs of local inhabitants.
He desired a regulatory framework which resembled the customs and usages of native people and was apt for their needs and requirements. The Plan of 1772 initiated the quest for the development of civil law in the presidency towns. 8
4.1 The Plan of 1772 – This plan was made to set forth the substantive and procedural rules
relating to civil and criminal law for better administration of justice which were mentioned in 37 sections. The hierarchy of courts set out in this plan was that two courts, Sadar Dewani Adalat and Sadar Nizamat Adalat at a superior level and two courts, Mofussil Dewani and Faujdari Adalats at an inferior level. The President and Committee of Circuit rather than civil courts had the original jurisdiction in the disputes involving the rights to inherit zamindari properties. The matters within the scope of modern family law such as marriage, inheritance, succession, caste etc. , can also be adjudicated according to the Quran in case the parties belonged to the Muslim community and according to Shastras in case the parties belonged to the Hindu community.
The affirmation of Pandits or Maulvis was made compulsory for the passing of the decree and therefore, a pandit or maulvi, as the case may
7 J.K. MITTAL, INDIAN LEGAL HISTORY, 251 (Central Law Agency 1971)
8 SIR GEORGE CLAUS RANKIN, BACKGROUND TO INDIAN LAW, 2-3 (Cambridge University Press,
1946)
be, was associated with the judge dealing with the case. The Collector appointed by the Company had limited legislative powers to formulate subsidiary regulations for the administration of revenue affairs but these regulations were subjected to the review of the Governor and Council. Moreover, this plan also provides for the limitation period of complaints i.e., 12 years. This plan has several defects and the rules made under this plan were called ‘regulations’ but after the Company was conferred with legislative powers under the acts of 1773 and 1781, the plan of 1772 was described as a collection of rules.9
4.2 Regulating Act of 1773 – The foremost function of this act was the establishment of the
Supreme Court at Calcutta and placing the legislative powers of the Governor and Council subjected to the approval of the Supreme Court. The Mayor’s Courts set up by the Charter Act of 1726 became subordinate to the Supreme Court. This act conferred to the Governor and council the powers to legislate for good governance of their territorial jurisdictions but all the rules, regulations and ordinances passed by the authority in this respect were subject to judicial oversight. The Governor and Council passed certain regulations in 1780 for the separation of the jurisdiction of civil and revenue courts in Calcutta. The provision of this act was not extended to the presidency towns other than Calcutta. This act had various flaws which were later resolved by the 1781 amendment.
10 This act created a conflicting situation in which the legislative powers were conferred on the judges and legislature was made subordinate to the judiciary and there was no control of Parliament of England on this situation. The objective of this act was to control the legislative powers of the Company’s government by placing it under the King’s Court but this system failed as the administrative functions could not be undertaken due to absolute interference of the court. There had to be a separation of powers between the organs of government for the exercise of sovereign authority. 11
4.3 Regulating Act of 1781 – The earlier defects of the Regulating Act of 1774 were also
removed by withdrawing the power of the Supreme Court to negate the regulations framed by the Governor and council. The Act of 1781 provided that the regulations introduced by the Governor and council had to be placed before the representative of the Crown i.e., the Court of Directors and the Secretary of State within 6 months from the date on which these
9 A.C. BANERJEE, ENGLISH LAW IN INDIA, 29-30 (Abhinav Publications 1984)
10 J.K. MITTAL Supra note 7, at 252.
11HERBERT COWELL, HISTORY AND CONSTITUTION OF THE COURTS AND LEGISLATIVE
AUTHORITIES IN INDIA, 44 (Thacker, Spink and Co. 1936)
regulations were introduced and the time for their consideration by the supervisory authority was 2 years. The authority can disallow these regulations in this period otherwise the regulations were considered to be passed. The legislative powers of the Supreme Court were transferred to the Court of Directors and Secretary of State but the Court was not bound by these regulations unless they were registered with the Court. 12 In 1780, Sir E. Impey was appointed as a separate judge of Sadar Dewani Adalat who introduced certain regulations concerning the procedure of civil courts. These regulations contained thirteen articles which were later revised into ninety-five sections in the procedural law code. It was called Impey’s Civil Procedure Code and was the first ever code which consolidated and amended the rules relating to civil procedure of the courts.
This code attempted to meet the requirement of explaining ambiguous and obsolete rules and regulations. The purpose of this code was to assign the courts of judicature for people to have recourse to justice and make the judges bound by the rules and regulations of this code. To bring certainty to the rules of procedure, section 95 of this code restricted the alteration of provisions of this regulation for any repugnancy with the existing rules and regulations. The Courts followed the practice of publishing these rules and regulations at any conspicuous place in the courtroom in Bengali and Persian language for better acquaintance of these provisions by local people. 13
4.4 General Code of Regulations of 1793 – The Parliament of England realized the need to
consolidate the regulations passed under the umbrella of the Regulation Act of 1781 which could compile all the rules and regulations with respect to contractual, proprietary and personal rights of the local people. Therefore, Lord Cornwallis introduced a General Code of Regulations in 1793. The regulations enacted by the council contained in this code were the guiding principles for all the provincial courts which also had to be registered with the judicial department and their translation shall be printed in the local languages of the country. The compilation of regulations was made with the intent to bring uniformity and certainty in civil law which specified all rights and privileges of native inhabitants. These rules and regulations were made binding upon the provincial civil courts.
However, the legislative powers can be exercised by the Governor and Council without sanction of the Supreme Court but control of this power is exercised by authorities in London as all the regulations enacted by the Governor and Council had to be sent annually to the Court of
12 J.K. MITTAL Supra note 7, at 252-253.
13 B. K. ACHARYA, CODIFICATION IN BRITISH INDIA, 55-56 (S. K. Banerjee & Sons 1914)
Directors and Board of Commissioners. These legislative powers were limited only to the presidency of Calcutta; therefore, similar provisions were made for the presidency of Madras by introducing legislation in the year 1800. Another act was introduced in 1807 which conferred the powers to the Governor and Council of the presidencies of Madras and Bombay to legislate rules and regulations for provincial courts and council but the prior sanction of the Supreme Court of these presidencies towns made compulsory for their validity.14
4.5 Charter Act of 1813 – The legislative powers of the Council of Presidency towns were
further extended by this Charter. The Council was conferred with the power to legislate in respect of all the persons irrespective of race, religion or nationality within the jurisdiction of the Government of the Company. However, the greater control over the exercise of this power was also specified in this Charter with the compulsory transmission of copies of the regulations annually to the Parliament of England. This Charter empowered the Government of all presidency towns to impose taxes under the authority of regulations made by the Council which also required the approval of the Court of Directors and Board of Commissioners.
This Charter affirmed the sovereignty of the British Crown over English acquisitions in Indian territory by incorporating a saving clause in this act which stated that ‘nothing in this act contained shall extend or be construed to extend to prejudice or affect the undoubted sovereignty of the Crown of the United Kingdom of Great Britain and Ireland in and over the said acquisitions. ’ This article also empowered the Councils of all presidency towns to maintain discipline among the British soldiers and Indian officers by making articles of war and establishing court martial for administering justice among them. 15
4.6 Charter Act of 1833 – The East India Company was transformed into an administrative
organisation by terminating the commercial functions of the Company under this act. The powers and functions of the Company’s Government were also extended by centralising all administrative and legislative power into the Governor-General of Bengal who was made Governor-General of India by this act. Lord William Bentick was the first Governor- General of India. The Council of Governor-General of India consist of four members and the fourth of them was considered as a law member, whose primary function was to
14 HERBERT Supra note 11, at 68-70.
15 J.K. MITTAL Supra note 7, at 255.
recommend legislative changes. Lord Macaulay was appointed as the first law member of the Council. All legislative and administrative functions of the whole territory of India were to be performed by the Council of Governor-General of India which consequently, ended the legislative and administrative powers of the presidency towns of Madras and Bombay. This Charter set up a Law Commission as a measure to codify the laws and suggest changes to laws and judicial procedures. These changes were to be suggested by the Law Commission in the form of a report periodically filed to the Governor-General in Council. This report was further submitted to the British Parliament which was the supreme lawmaking body. The legislative powers conferred to the Governor-General in Council to frame, amend or repeal laws, rules and regulations were subject to the sanction of the British Parliament.16
5. CONCLUSION
With the introduction of the Charter Act of 1833, the development of Civil law in presidency towns came to an end and the legislative powers were centralized into the Council of Governor- General of India with strong control of the British Parliament. After 1833, various legislations were passed on the recommendation of the Law Commission to codify the law on subjects such as succession, contract, negotiable instruments, transfer of property, trusts etc. Along with civil law, criminal law was also codified by Lord Macaulay as the Indian Penal Code in 1860. The Britishers also attempted to codify the personal laws of Hindus and Muslims to some extent but maintained a distance from interfering in the religious matters of Hindus and Muslims.
The legislative powers of the presidential governments were limited to the administration of their territorial jurisdiction and the development of civil law in presidencies was negligible. The early legislative experiments were only concerned with the English merchants and administrators. The interests of the Indian population were not taken into account in framing these legislative policies by the Company. These experiments did not contemplate any attempt to codify the laws and frame a comprehensive legal framework. The heterogeneity of local customs and traditions led to inconsistency, confusion and injustice in administering justice to the Indian population. The application of English laws upon Indians suffered from various ambiguities which were perceived as inequality and bias to the Indians.
The legislative experiments during the mid-19th century were shaped in such a manner to favour the English
16 The Charter Act of 1793, 1813 and 1833, UPSC WITH NIKHIL (April 09, 2022)
https://upscwithnikhil.com/article/history/the-charter-act-of-1793-1813-and-1833.
traders with several exemptions. The legal institutions were underdeveloped at this stage and the presiding officers of these institutions lacked judicial training to administer justice to Indian masses. The legislative experiments during Company rule were like a seed taking root in the soil marking the beginning of the constitutional legal framework in India.