30 May 2010

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Part 17 – Indian Legal History – Separation of Executive and Judicial Powers 1797 – 1813

Part 17 – Indian Legal History – Separation of Executive and Judicial Powers 1797 – 1813
Reality Views by sm –
Sunday, May 30, 2010

In 1797, It was not allowed to file a apple to the Sadar Diwani Adalat in cases of personal property , to reduce the work load of Sadar Diwani Adalat .

But later it was realized that this is not helping to reduce the work load of courts.
Therefore by Regulation V of 1798 [ Governor General Wellesley ] it was decided that appeals could go to Sadar Diwani Adalat only when the subject matter , case matter involved more than Rs.5000 in value irrespective of whether real or personal property was involved.

Governor General Wellesley understood that for good governance ,good justice system judiciary and executive powers should be divided . The process was started by the Lord Cornwallis and GG Wellesley took it further.

GG wrote the letter to Court of Directors regarding this , Wellesley himself wrote about the reducing the power of the post which Governor General enjoyed .
Wellesley demanded the separation of Sadar Adalat and Government .

I am reproducing few lines of Governor General Wellesley what he wrote ,

It is equally necessary to the happiness of the people , to the prosperity of the country [ India ] and to the stability of the British Government , that such laws as the Governor General in council may sanction in his legislature capacity ,should be administered with ability , integrity , impartiality and expedition , all the provisions made by the British Constitution for precluding the legislative and the executive powers of the state from any interference in the administration of the laws , are not only applicable to the government of this country , but , if it were possible demand to be strengthened .

All the powers , legislative ,executive and judicial were concentrated in the hands of the Governor General in council and Lord Wellesley realized that this is wrong and not good for any nation .

Lord Wellesley penned his Minute on the 12th March 1801 demanding and advocating separation of the Sadar Adalats from the Governor General and council.
He said that in current system Government, executive can abuse the powers he got , this is one of the reason executive should not enjoy this power.

After this By Regulation II of 1801 the Sadar Diwani Adalat and the Sadar Nizamat Adalat were to presided over by three judges appointed by the Governor General in council.
The chief judge was to be a member of the council but neither the Governor General nor the commander in chief was to occupy this office.
In this change only problem or defect was that still chief justice was a member of the Governor General Council .

In 1803 the jurisdiction of the Sadar Adalat was extended to the Oudh .and in next 2 years to the Bundelkhand.

In 1805, 2nd Time Lord Cornwallis became Governor General who started the process of separation of powers between the judiciary and executive in 1793.

In 1805 by Regulation X, a complete separation between the sadar adalats and the government was effected by Lord Cornwallis .

But again in 1807 during the period of Lord Minto , by regulation XV enacted on 23 July 1807 modified the constitution of the adalat by increasing the number of the judges from 3 to 4 and one judge should be member of the governor general and council other than Governor General or Commander in chief .

Regulation XII of 1811 provided for appointment of a chief judge and such number of judges to the Sadar Adalats as the Governor General and council deem fit as per the work load of sadar adalats . This regulation does not mention that judge should be member of council .

Lord Minto realized the importance of separation of powers between the executive and judiciary .

Regulation XXV of 1814 laid down the necessary qualification for the appointment of judges of the sadar adalats .
The Regulation laid down that no person was to be deemed qualified to be appointed as a judge of the sadar adalats unless he had previously officiated as a judge of a provincial court of appeal or of a court of circuit for a period of not less than three years and had been employed in the judicial department or in offices requiring the discharge of judicial functions whether of civil or criminal nature for a period of not less than nine years .

This provision was rescinded in 1823 by Regulation IV as it was proving difficult to find qualified persons to be appointed as judges . The sadar adalats subsisted till 1862 when they were merged in the newly constituted High Court at Calcutta .

Oudh was ceded to the company by the Nawab Vizier in perpetual sovereignty by a treaty on November 20, 1801 .

The Province of Oudh was divided into seven districts namely Moradabad, Bareilly, Etawah, Farrukhabad, kanpur , Allahabad and Gorakhpur.

On March 24, 1803 Same Judicial system was introduced in the Oudh .

The number of Pending cases in various courts on the 1st January,1802 was as follows .
• Courts of Appeal – 882
• District diwani adalat – 12,262
• Registrars – 17,906
• Munsiffs – 131,929

In 1803 selection of Munsiff was made more easy . The judge of the diwani adalat got the power to appoint the Munsiff with the approval of the sadar diwani adalats . Not only zamindar but other qualified Indians also got right to become Munsiff .

Till 1811 no distinction was made between revenue and judicial services .

District judges were appointed without consideration of any judicial experience as a result servants from the revenue, political , military or postal department servants suddenly became the District Judge who failed to do justice with their job because of lack of judicial knowledge and experience.

In beginning servants got the initial training at the Fort William college.
Lord minto decided that junior servants were to make a choice between the judicial, revenue or postal service .Once an officer made his choice , he was to stay and receive promotions in the department only .
Thus it tried to stop the postal department servant suddenly becoming the Judge .

On January 1, 1814, the total number of cases in all courts stood at the 139,271.

See the thinking of British Rulers , what they said about this situation ,

We should be very sorry , that from the accumulation of such arrears, there should ever be room to raise a question , whether it were better to leave the natives to their own arbitrary and precipitate tribunals, than to harass their feelings and injure their property by an endless procrastination of their suits , under the pretence of deliberate justice .

Delay in Justice Resulted in –
Bribery , corruption and extortion , taking laws in own hand , no fear of law.

In 1813 , the charter of company was renewed .

Today in India do we find such a thinking in Indian law makers and politicians ?


lara,  June 07, 2010  

thanks for sharing