01 September 2010

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Part 29 - Indian Legal History – Importance of Privy Council or King in council towards Indian Legal History -

Part 29 - Indian Legal History – Importance of Privy Council or King in council towards Indian Legal History -



Reality views by sm –
Wednesday, September 01, 2010

Once England ruled the world and Privy Council or King in council heard appeals from more than 150 countries in all types of cases civil, criminal etc.
The jurisdiction of the Privy Council originated at the Norman Conquest with the premise that:


“The King is the fountain of all justice throughout his Dominions, and exercises jurisdiction in his Council, which act in an advisory capacity to the Crown.”
At the beginning of the fourteenth century, receivers were appointed to aid the dispensation of justice in Parliament. One group was appointed for Great Britain and Ireland, and one for the Channel Islands.
Appeals from the Channel Islands became the first regular appellate business of the King’s Council, now the Judicial Committee of the Privy Council. With the growth of the British Empire, this business increased with appeals and petitions from the Royal Council, and Privy Council Committees were formed.

From 1833 the Privy Council was officially known as or called as the judicial committee of the Privy Council.

Privy Council - Abolished the Sati system of India.

In 1831 the Privy Council heard an appeal against the East India Company “from certain Hindus of Calcutta complaining of a regulation of the Governor General… abolishing the practice of Sati system”.
In India Sati is a custom in which after the death of Husband it was a rule that the wife should commit suicide or burn herself with her dead husband.
The ban was upheld by the Privy Council, but it was heard by an unusually large board of nine judges.

This court was highest court of appeal for over two centuries, setting high standard of justice system in India.

In 1726 for the first time a right to appeal to the king in council was granted from the courts in India.
From period 1726 to 1833 more than three hundred appeals were disposed of by the Privy Council.
During its period as the highest court of appeal from India the Privy Council rendered more than 2500 judgment which for a great body of precedents. These judgments constitute the fountain source of law on many points.
Privy Council was situated and bases in London and distance was 5000 miles or more.

All the Privy council documents are kept at the Public Record office, London.
If ever you read their letters, discussions about the slave colonies in England parliament you will realize how less our own Politicians discuss about the progress of India in our own parliament.
Today our politicians wait for Supreme Court of India to order them in writing to give free food to poor people of India, give free medicine or reduce the medicine prices.


K.M. Munshi, a lawyer-statesman observed –
The British Parliament and the Privy Council are the two great institutions which the Anglo Saxon race has given to mankind.
The Privy Council during the last few centuries has not only laid down law but coordinated the concept of right and obligations throughout all the dominions and colonies in the British Commonwealth. So far as India is concerned, the role of the Privy Council has been one of the most important.
It has been a great unifying force and for us Indians it became the instrument and embodiment of the rule of law, a concept on which alone we have based the democratic institutions which we have set up in our constitution.

Alladi Krishnaswami Ayyar, an eminent lawyer-member of the constituent assembly observed regarding work of Privy Council, he said,
There can be no doubt that the record of the judicial committee of the Privy Council has been a splendid one.

On 6th February,1950 at a sitting of the Privy council a message was read from the Government of India paying a tribute to the Valuable services rendered by Privy council to India over a period of more than two centuries .
Government of India act 1935 started the federal policy in India.
This act established, made provision for the establishment of federal court in India.
Federal policy, constitution means distribution of power between centre and the constitutional unit.
Federal court is one which solves disputes between the centre and the constitutional unit.
Federal court was formally inaugurated on the 1st October, 1937
The viceroy administered the oath of allegiance to the first three judges of the court namely,
• Sir Maurice Gwyer – chief Justice from 1 October, 1937 to 25 April, 1943
• Sir shah Muhammad Sulaiman
• M.R. Jayakar.

The court held its first sitting at New Delhi on December 6.1937.
The governor general was not bound to accept the opinion of the Federal court.
Governor General = Today’s Prime minister and his council
From Federal court appeals went to the Privy Council.
The judges of the federal court were appointed by his Majesty.
They were to remain in office till they reached age of 65 years.
A judge could be removed from office for misbehavior or infirmity of mind or body.
In India federal court worked for only 12 years but the job done was excellent.
Federal court is predecessor of the present day supreme court of India.

Indian Constituent Assembly passed the abolition of Privy Council jurisdiction act on the 24th September, 1949 to abolish the jurisdiction of Privy Council in respect of appeals from India.
The act came into force on the 10th October, 1949.

The last appeal from India was disposed of by the Privy Council on December 15, 1949 and with this came to an end India’s 200 year old connection with Privy Council.

On January 26, 1950, the federal court itself was converted into the Supreme Court and all the federal court judges on that day became the judges of the Supreme Court.

Thus Indian Legal history started its new era.

In short I will here mention about the current working and role of The Judicial Committee of the Privy Council around the world.

The Judicial Committee of the Privy Council is the highest court of appeal for many current and former Commonwealth countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas.

It also hears very occasional appeals from a number of ancient and ecclesiastical courts. These include the Church Commissioners, the Arches Court of Canterbury, the Chancery Court of York, prize courts and the Court of Admiralty of the Cinque Ports.

• United Kingdom appeals
• Commonwealth appeals
• Overseas territories and sovereign base appeals
• Appeals to local head of state

United Kingdom appeals

The Judicial Committee hears domestic appeals to Her Majesty in Council as follows:

• Jersey, Guernsey and the Isle of Man
• the Disciplinary Committee of the Royal College of Veterinary Surgeons
• against certain schemes of the Church Commissioners under the Pastoral Measure 1983

The Judicial Committee also has the following rarely-used jurisdictions:

• appeals from the Arches Court of Canterbury and the Chancery Court of York in non-doctrinal faculty causes
• appeals from Prize Courts
• disputes under the House of Commons Disqualification Act
• appeals from the Court of Admiralty of the Cinque Ports

Additionally, Her Majesty has the power to refer any matter to the Judicial Committee for "consideration and report" under section 4 of the Judicial Committee Act 1833.

Under the Constitutional Reform Act 2005, devolution cases from the regions of the United Kingdom are now heard by The Supreme Court.



Commonwealth appeals

To bring an appeal to the Judicial Committee of the Privy Council, you must have been granted leave by the lower court whose decision you are appealing. In the absence of leave, permission to appeal must be granted by the Board. In some cases there is an appeal as of right and a slightly different procedure applies.

In civil cases, the lower court will generally grant you leave to appeal if the court is satisfied that your case raises a point of general public importance.

In criminal cases, it is unusual for the lower court to have the power to grant leave unless your case raises questions of great and general importance, or there has been some grave violation of the principles of natural justice.

Appeal therefore lies from these countries:

• Antigua and Barbuda
• Bahamas
• Barbados
• Belize
• Cook Islands and Niue (Associated States of New Zealand)
• Grenada
• Jamaica
• St Christopher and Nevis
• Saint Lucia
• Saint Vincent and the Grenadines
• Tuvalu

Legislation enacted in New Zealand in October 2003 abolished appeals from New Zealand to the Privy Council in respect of all cases heard by the Court of Appeal of New Zealand after the end of 2003. This New Zealand legislation does not affect rights of appeal from the Cook Islands and Niue.

Appeal to the Judicial Committee also lies from the following independent republics within the Commonwealth:

• the Republic of Trinidad and Tobago
• the Commonwealth of Dominica
• Kiribati
• Mauritius

The circumstances in which appeals may be brought are similar to those in which appeals lie to Her Majesty in Council as above, except that from Kiribati an appeal lies only in cases where it is alleged that certain constitutional rights of any Banaban or of the Rabi Council have been or are likely to be infringed.



Overseas territories and sovereign base appeals

The Judicial Committee hears appeals from the following overseas territories of the United Kingdom:

• Anguilla
• Bermuda
• British Virgin Islands
• Cayman Islands
• Falkland Islands
• Gibraltar
• Monserrat
• Pitcairn Islands
• St Helena and dependencies
• Turks and Caicos Islands

Additionally, appeals are heard from sovereign base areas in Cyprus:

• Akrotiri
• Dhekelia



Appeals to local head of state

In civil cases only, an appeal lies to the Judicial Committee from the Court of Appeal of Brunei to the Sultan and Yang di-Pertuan.

By agreement between Her Majesty and the Sultan these appeals are heard by the Judicial Committee, whose opinion is reported to the Sultan instead of to Her Majesty.

Suggested Reading –

Part 30 - Indian Legal History – Criminal law system in India Prior to British Rule, East India Company Rule



8 comments:

A September 01, 2010  

Excellent post...very informative.

Bikramjit September 01, 2010  

wowo Some information that is Thank you thank you...

This is what i meant in my article that British gave us so much , we were better off under them, the judicial system now .. look where it is in india.

Excellent article as others and so much info ..

Sat_hi_sh September 01, 2010  

Very very informative blog u have here ,will follow up regularly :)

U have a new follower ,keep up the good work
cheers !!!

sm,  September 02, 2010  

Bikramjit,,
thanks

sm,  September 02, 2010  

Sat_hi_sh,,
thanks

susanna September 04, 2010  

A good writing style and information is certainly useful. For all readers continue to write such excellent articles. Thank you.

state

sm,  September 04, 2010  

susanna,,
thanks.