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Published online by Cambridge University Press: 11 February 2009
Until 1793, the judicial policy of the Company's Government in Bengal was guided only by expediency and tradition. The tradition was that of the Moghul government which entrusted the management of civil justice to the Executive and those in charge of collection of revenue; 1 and the expediency—that of discharging the responsibilities of the Diwani with as little spending from the profits as possible. This is clearly visible in Warren Hastings's administrative arrangements of 1772 under which the civil judiciary in the mofussil was consigned to the District Collectors of revenue. With few interruptions marked by Hastings's administrative experiments,2 the practice of keeping the revenue and judicial functions united continued for the following twenty years. In 1790, when for the first time the Company took over the administration of criminal justice, the District Magistracy was also vested with the Collector. He thus became the Judge, Magistrate and Collector, all in one. This ‵single officers′ plan for the Districts had been advocated by Sir John Shore as being in conformity with the tradition with the Indians looking up to a single despotic authority for the redress of all their grievances,3 and had found favour with the Directors4 for the economy involved.
1 Under the Moghul system the Diwan used to be the provincial head of civil justice and revenue.
2 In 1780 Civil Judges, called Superintendents of Diwani Adalats, were posted to the existing eighteen Districts in accordance with a scheme of reform drawn by Sir Elijah Impey, the Chief Justice of the Supreme Court. Even then all disputes concerning revenue were left to the exclusive cognizance of the Collectors in their Courts styled Mai Adalats. The separate Judgeships were abolished in 1787 under instruction from the Court of Directors (see their Despatch to Bengal dated 12 April 1786) when the Collectors reverted to their full judicial authority.
3 Remarks on ‘Administration of justice etc.’, by Sir J. Shore, Bengal Revenue Proceedings, 29 May 1785.
4 Letter from Court of Directors to Bengal, 12 Oct. 1786, para. 7.
5 Cornwallis's Minute, 8 Feb. 1793, para. 27, Bengal Revenue Consultations, 11 Feb. 1793, no. 1.
6 Fifth Report of the Select Committee of the House of Commons, Parliamentary Branch Collections (1812), LVI, 18.Google Scholar
7 See above, p. 240.
8 Regulation II of 1793.
9 Wellesley to Dundas, 5 March 1800, Wellesley Papers, ed. Montgomery Martin, II, 231.
10 Minute of Governor-General in Council, 25 July 1805, Bengal Civil Judicial Consultations, 25 July 1805, no. 14.
11 Judicial despatch from Court of Directors to Bengal, 7 June 1807.
12 Secretary to Government to Sadr Diwani Adalat, 17 Dec. 1811, Civil Judicial Consultations, 17 Dec. 1811, no. 2.
13 The selection of John Becher in 1797, and that of John Battaye in 1799, are typical examples of officers without any judicial experience being appointed District Judges, Dodwell and Miles, List of Bengal Civil Servants.
14 Judicial Letter from Bengal to Court of Directors, 7 April 1807, para. 84.
15 Minto to Lumsden, 28 July 1808, Minto MSS. Collections, National Library of Scotland, Edinburgh.
16 Such officers were, for instance, J. Tufton, Judge-Magistrate of Zilla Bihar (modern Gaya) in 1801; T. Ernst, Judge of Circuit for Benaras Division in 1810; and Henry Shakespear, the Judge-Magistrate of Jessore in 1812.
17 Fifth Report, 1812, Parliamentary Branch Collections (1812), LVI, p. 69.Google Scholar
18 Minute of Lord Hastings, 21 Sept. 1815, para. 96, Papers relating to the judicial system of Bengal, etc., India Office Reg. (71) 197.
19 Judicial Despatch to Bengal, 9 Nov. 1814, paras. 165–8.
20 Judicial Despatch to Bengal, 10 April 1816.
21 Lord Hastings's Minute, 21 Sept. 1815, para. 96, papers relating to the Judicial System of Bengal, I. O. Reg. (71), 197.
22 Judicial Letter from Bengal, 4 July 1817, paras. 59–60.
23 After a brief interregnum (1814–19), arrears before the District Judges had started to mount again. Thus after the arrears having crept down from 16,898 at the beginning of 1815 to 13,875 at the end of 1820, the figures had again mounted to 23,170 by the end of 1823. Parliamentary Branch Collections, 1832, VII, app. v, no. 16.Google Scholar
24 John Adam's Minute, 12 June 1823, Bengal Civil Judicial Consultations, 12 June 1823, nos. 20–23.
25 It was stipulated that the Magistracies were to revert to the respective Judges, as soon, as the arrears before the latter were brought down within manageable limits.
26 Judicial Letter from Bengal, 22 Feb. 1827.
27 By Regulation xiv of 1824.
28 Ibid.
29 Eric Stokes, The English Utilitarians and India, p. 157.
30 This view was expressed by Prof. C. H. Philips of London University in a Seminar lecture delivered at the School of Oriental and African Studies, London, on 16 March 1965. The present author agrees with it.
31 Bentinck to MetcaLfe, 16 Sept. 1829, Bentinck MSS., Nottingham University Library.
32 Before Bentinck, the specially empowered among the superior Indian Judges (the Sadr Amins) were authorized to take cognizance of cases up to Rs. 1,000 in amount or value. Bentinck created a new cadre of Indian Judgeship known as Principal Sadr Amins who were given original jurisdiction over cases up to Rs. 5,000 (see Regulation v of 1831).
33 By this it was meant that the Collectors were now empowered to receive and decide revenue cases on their own.
34 By Regulation VIII of 1831.
35 Judicial Letter from Bengal, 15 Sept. 1831, para. 17.
36 Sir Thomas Munro was a distinguished civil servant of Madras. By his criticism of Cornwallis's Permanent Settlement and his administrative set-up under which the executive officer of the District (the Collector) had been made weak and inefficient due to an overconcentration of powers in the hands of the District Judges, Munro became the pioneer of a rival school of thought which stood for invigorating the executive arm (the Collector) in the District.
37 Bentinck's Minute, 10 Nov. 1831, Parliamentary Papers (1831–2), ix, 749.Google Scholar
38 Judicial Letter from Bengal, 15 Sept. 1831, para. 17.
39 This is to be inferred from Dr Stokes' remark that Bayley's proposal for multiplication of judicial tribunals agreed with the broad outlines of Bentham's teachings but his inspiration was not Benthamite. Eric Stokes, op. cit. p. 156.
40 Evidence of James Mill before Select Committee of the House of Lords, 29 June 1832, Parliamentary Branch Collections (1832), LXXVII, 119 no. 28.Google Scholar
41 Stokes, op. cit. pp. 155–6.
42 Bengal Civil Judicial Consultations, 12 Oct. 1830, no. 80.
43 Until 1830, Munsiffs were not paid any salary, but were allowed to appropriate the fees levied on the institution of cases, by way of remuneration. In 1830 Bentinck decided to abolish this system and pay the Munsiffs a fixed salary of Rs. 100 per month. He, however, indirectly provided for a cut in their establishments in order that the Government might not have to incur a very heavy financial burden.
44 Report of the first Law Commission on ‘Native Judicature’, 17 May 1843, para. 38, India Office Register (71), 153.
45 Stokes, op. cit. p. 157.
46 Ross's Minute, 15 Aug. 1828, Civil Judicial Consultations, 2 Oct. 1828, no. 4B.
47 James Mill, loc. cit. p. 246.
48 Quoted in Judicial Despatch to Bengal, n Jan. 1832, para. 4.
49 This was to modify the prevailing system in which Judges sitting singly on appeals were authorized only to confirm the decisions of the lower courts, a reversal or modification of the decision requiring the concurring opinion of at least two Judges.
50 Stokes, op. cit. p. 73.
51 Ibid. p. 165.
52 Ibid. p. 157–
53 Stokes, op. cit. pp. 164–5.
