The East India company, in 1765, acquired the diwani rights of three provinces by signing an agreement with the Emperor. These provinces were Bengal, Bihar and Orissa. These provinces were wealthy provinces. Warren Hastings was appointed as the governor general of Bengal. The dual system of government was a failure and Hastings was asked to consolidate the Company’s rule in Bengal. He was also given the task of judicial reformation.
Warren Hastings and Judicial Reforms
Warren Hastings was an English statesman and the the first Governor of the
Presidency of Fort William (Bengal). He was the head of the Supreme Council of
Bengal and also the first de facto Governor-General of Bengal. He exercised this position from 1772 to 1785. Hastings is seen as an important reformer who, during his tenure, brought many reforms. He first came to the country in 1772.
One of his observations was that the though the Company enjoyed the right of Diwani(Since 1765) of the wealthy provinces(Bengal,Bihar and Orissa), it had hit the rock bottom to become financially bankrupt. He also noticed that the Dual Government had failed to succeed. Influenced by these observations, he wanted to correct the administrative system. He is praised and known for laying the foundation of the English administration in India. The Council replaced certain measures introduced by Warren Hastings. This was established by the Regulating Act. Two years post this incident, he was in a position to assert himself and introduce his plans freely.
After the acquisition, the concept of Mofussils was beginning to be used. The concept of Mofussils was used to denote the territories surrounding the Presidency towns. There was already a properly established and well established judicial establishment in the Presidential towns like Calcutta, Bombay, and Madras under the appearance of Mayor’s court and court of Governor-in-council. It was clear that a similar set up was urgently needed in these areas called Mofussils(Areas adjoining Presidential towns).These reforms were seen as beneficial. For this reason, it is widely opined that “Hastings attempted to establish a just judiciary administration in India.”
During this time, a Supreme Court was also established at the town of Calcutta. This was established after the enactment of the Regulating Act of 1774 by the British Parliament. The jurisdiction of this court and relations with the Sadar Nizamat Adalat and the Sadar Diwani Adalat, however, remained unclear and undefined. The laws followed by this court also remained unclear. As an expected result, this had an adverse impact on the judicial administration in Bengal. These impacts were clearly visible for a period of time.
The reforms were to be aimed at correcting the defective system. This was to be advantageous to the Company and save the ryots from oppression in the hands of Zamindaars and other tyrants. Hastings proceeded to reform the administration of justice. His reforms can be seen as a division of four stages.
Hastings understood the relationship between revenue and the administration of justice. The administration of revenue in these was seen as an important activity and function for the rulers. This was because of the fact that the activity generated a lot money and was a significant contributor to total revenue. As it was necessary to have lands and private property and these could be made prosperous only when there was proper maintenance of peace. Social order was a significant factor for prosperity as it affected the occupational work of people and the quality of the work. Peaceful society was a must to prevent unnecessary distractions affecting economical activities of the people. As the society was mostly agrarian, the need for order became even more important. It was obvious that life security and security of property was essential to bring order in the society. Ensuring peace would act as a boost for economical activities which in turn would generate sufficient revenue. This will enable the people to pay taxes properly. All these scenarios and requirements demanded an effective judicial system which was exactly what the society then lacked.
Warren Hastings also understood that there was the lack of central authority that exercised power, dispensed justice, and controlled other authorities. The Mughal empire was dissolved at this point of time and the Nawabs were also significantly weakened in the concerned areas. The then existing judicial system was also improper and broken down. This made the system inefficient and ineffective. The appointed candidates were inefficient and lacked in required skills. They started to abuse their power and there was no system in place to check the corrupt activities of the officials. Another prevalent scenario that necessitated judicial reformation was the corruption prevalent in the centres of justice.
According to the reforms, many courts were introduced. The other type of courts that were introduced was the Mofussil court or district court. These courts were also called as Mofussil Diwani Adalats. Each district got one of these courts. The jurisdiction of these courts extended over the the civil and revenue case. This court also dealt with cases relating to marriages,contracts, property inheritance, disputed accounts, private properties, inheritance, partnership and rent related issues. The pecuniary limit of these courts were capped at five hundred rupees. Composition of this court included Governor as the President and minimum two members of the council who were assisted by Diwan Treasury and Chief Kanungo. The judgements given in this court was the final one in cases of value upto five hundred rupees. This court was presided over by the Collector of the district. The collector worked with the native judicial officers called Kazis and Pundits. The collector or the judge of these courts required the assistance of native law officers as the collector was not versed with the personal laws of the Hindus and the Muslims based on which certain cases were to be handled. The native law officers helped the collector with their knowledge of the personal laws of native communities.
The other type of courts were known as Mofussil Nizamat Adalat. The other name for these courts was Fauzdari Adalats. Every district got a Fauzdari Adalat. These courts, unlike other courts discussed above, dealt with criminal cases alone. This court did not have the jurisdiction to try cases that were about capital punishment and issues related to forfeiture of property. These cases were required to be submitted to Sadar Diwani Adalat for judgements. One unique thing to these courts were that these courts were presided over by Muslim law officers alone. The Moulvi was involved involved in the process of expounding the law. Fatwa was given by the Kazi and the Mufti. These officers gave the judgements accordingly. The officers of law and the collectors of the district were allocated with important roles. These officers and the collectors were required to supervise the courts. The supervision job included the checking of witnesses involved in the case and hearing of all witnesses. The other function of this role was to try cases properly and regularly, and to impart justice impartially.
The other type of courts was called Sadar or Provincial courts. This case acted as the central and apex court for civil cases in the area of the province. This case was empowered with both the appellate and orginal jurisdiction. It exercised this jurisdiction by hearing appeals from Mofussil Diwani Adalat. This court also tried cases that were related to or involved disputes of rupees five hundred. This court had the practice of charging up to five percent as a commission. This commission was charged on the amount involved in the dispute. This commission was charged on each petition or appeal. This court was presided over by the governor and the council. This court was located in the town of Calcutta. The first sitting of this court was held on 17th March of 1773. The next type of court was called as Sadar Nizamat Adalat. Sadar Nizamat Adalat was also the central and apex court for criminal cases within the provincial area. It is similar to Sadar Diwani Adalat in certain ways. This court had the jurisdiction and was empowered to decide issues related to capital punishment and forfeiture of property. In capital punishment cases, this court had the task of preparing death warrant. This warrant had to be signed by the Nawab (the head of the Nizamat).
Governor in Council acted as the supervisor and had the functions to supervise the functions of the court. This was similar to Mofussil Nizamat Adalat. The location of the court was moved Murshidabad (the residence of the Nawab). This location shift was due to the fact that his signature was required for all capital punishment cases. The office of Naib Nazim was developed later. Mohammed Reza Khan was appointed to assist instead of the Nawab.
Several provisions were introduced, as a part of the judicial plan, to promote fair and impartial justice in the area. Open observation was made possible by conducting the judicial process and trials in the open court. This was done to gain the trust of people and ensure transparency. Adalats at district and village level were asked to maintain a register of all the cases. These records had to be sent to the Sadar Adalats. This was a move towards curbing power abuse and checked the activities of the court regularly. As a part of the reforms, already existing and rough civil procedures for civil cases was used.
According to this procedure, the defendant had to reply after the filing of petition by the petitioner. After the hearing of the defendant, the Adalat and heard the concerned parties and examined the evidence presented. After completing all the these procedures, the court passed the decree. A time period rule was introduced, according to which a case had to be filed within 12 years of the dispute. All the cases exceeding this time limit were considered time barred. Another important feature was the introduction of arbitration for providing assistance to the civil court. When it came to laws and procedures related to crimes, the attention was given to laws and procedures to curb the activities like dacoity and remove mutilation as a method of punishment.
Warren Hastings did not believe in mutilation as an effective punishment and the convicted would become a dependent person and increase the burden on the society. However, mutilation as a punishment was not removed the codes of law and was its usage was refrained in practice. This was done lest resistance by the Muslim law officers who were not open to change and adhered to the texts.
Making certain corrections to the earlier reforms, collectors were asked to resign and other appropriate people were being searched. The new plan came into effect in January, 1774. The suitable personnel were found in Amils or Diwans. Amils were appointed in each district. Amil was given the role of revenue collector and he had the role of judge of Mofussil Diwani Adalat. The Presidencies of Bengal, Bihar, and Orissa were divided into six and headquarters were set up at Calcutta, Murshidabad, Dinajpur, Dacca, and Patna. Each division had several districts under the authority of the headquarters. Provincial councils were set up in each headquarters. Five Covenanted servants were appointed for each council. The function of the provincial councils were supervision of revenue collection. Amils were given the duty of tax and revenue collection. These courts were allotted the function of hearing appeals from Mofussil Diwani Adalat. The appeals of pecuniary value above thousand rupees would go to Sadar Diwani Adalat. These courts became an amalgamation of Mofussil Diwani Adalat and Sadar Diwani Adalat. Now cases of all value and appeals could be heard in the Provincial Council. This became a court of first instance. It was empowered with original jurisdiction. The court heard the cases from the division or headquarters. These cases could be heard directly at these courts.
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