05 December 2010

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Part 34 – Indian Legal history – Charter of 1833 Introduction of Justice, Equity and Conscience

Part 34 – Indian Legal history – Charter of 1833
Introduction of Justice, Equity and Conscience

In 1780 Bengal First time British rulers introduced the maxim justice, equity and conscience and later it was introduced in other presidencies like Bombay and Madras and rest of India.




In Punjab 1872 Punjab laws act 1872 introduced the doctrine, maxim Justice, Equity and Conscience in judicial system.

Central Provinces Laws Act 1875, Section 6 mentions when the judge that is court should use the maxim Justice, Equity and Conscience while deciding a case.
Later it was added to other laws also.

How this maxim worked?
When court found that there is no provision in Hindu religious law or Muslim religious law then the maxim Justice, Equity and Conscience came to help the court and accordingly court decided the case.
This depends on the education of judge, his thinking thus what he felt right was right.
Very slowly this began to influence and bring more and more English law into India.

In 1862 High courts were established and Englishmen became the judge who were studied and knew English judicial system, they were barristers and were trained in law.

From India appeals went to Privy Council in England thus automatically more and more English law was introduced in India.
But English law was not used in every case.
It depend on case, there are many cases which one can find where English law was not used.
Few examples -
Khwaja Muhammad khan vs Husaini Begum
Srinath Roy vs Dinabandhu sen

English courts also always gave importance to Hindu customs and Muslim customs in India.

After India became independent today also courts use the English Judgments, now a day’s even American judgment is referred while giving judgment.

But while doing this Indian courts see that and give more importance to religion and mob and not to individual freedom.

As in India number of courts increased, high courts increased and every court gave its own judgment and there was no supreme court, a court whom other courts can look for guidance and to find the correct meaning of law.

Thus English people felt the need for codification of laws in India.
Thus charter of 1833 made provision to create uniform and codified system of law in India.
The charter introduced and established

1.
It established an omni competent all India legislature having legislative authority throughout the country

2.
it created a new office of the law member in the government of India

3.
it provided for the appointment of a law commission in India

It established an omni competent all India legislature having legislative authority throughout the country – First time in 1829 Lord William Bentinck spoke about this.

The charter act 1833 received royal assent on august 28 1833 and came into force on April 22, 1834.

The important provisions of this charter, law are as follows.

1.
The governor general of Bengal was designated as the Governor General of India.

2.
Governor General in council got powers of superintendence, direction and control of the whole civil and military government and the revenues of India.

3.
centralization of legislative power

4.
setting up of legislative council

5.
legislative council got the power to repeal, amend any law in India exception charter of 1833

6.
All the laws and enacts passed by the legislative council were called as Acts of the Government of India, before this they were called as regulations. All laws were binding on all the courts in India.

7.
The office of the law member was created who helped or assisted governor general in law making

8.
appointment of law commission

First law commission in India was established in year 1835; under the act membership of the commission had to be approved by the court of directors.
The charter act placed the law commission wholly under the direction and control of Governor General in council

The first project commission got was to codify the penal law for India.
After this commission prepared draft and presented it to the Governor General in 1837.
Macaulay did lot of work regarding creation of draft.
When Maculay retired after that the work of law commission lost the speed.
It did nothing special.
In 1842 it prepared draft of the law of limitation.

The concept of Lex loci, a report was prepared as there were situations when neither Hindu nor Muslim law was applicable.

Continued –

Suggested Reading –

Below are the links for Part 1 to last Part 38
Complete Indian Legal History from year 1600 to 1935

http://realityviews.blogspot.com/2011/01/complete-indian-legal-history-from-year.html



Part 33 – Indian Legal history – Regulations and codification in British India 1793 up to year 1834

http://realityviews.blogspot.com/2010/11/part-33-indian-legal-history.html


Reality Views by sm –
Sunday, December 05, 2010

8 comments:

A December 05, 2010  

Very comprehensive once more.

Neha December 05, 2010  

I was aware about how the English law was introduced in India. we still follow it..out contract act, evidence act and few more acts are quite similar to the english laws..we even follow the vacation period that they set for our courts..they kept amending many laws with time, we are yet to do that!

sm,  December 05, 2010  

Neha,,
thanks.

Sat_hi_sh December 05, 2010  

Gr8 compilation yet again :)

sm,  December 05, 2010  

Kiran Bajaj Sawhney,,
thanks

sm,  December 05, 2010  

Sat_hi_sh,,
thanks