12 November 2010

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

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

Warren Hastings Plan of 1772 started the journey of Indian judicial system.
It introduced the concept of judicial tribunals known as Adalat system in India.
This plan laid said that Hindu law should be followed for Hindus and Muslim law for Muslims like Shastra for Hindu people and Koran for Muslim people.

That time as it was the beginning of the judicial system, only little part of India was under their control, they did not make separate rules and laws for Sikh, Jain and other communities.

The Hindu wills Act 1870 was made applicable to the wills of a Hindu, Jain, Sikh, and Budhist.

On other part The Married Women’s Property act 1874 distinguished among Hindu, Muslim, Sikh, and Jain and Budhist communities.

The Special Marriage Act 1872 was enacted to provide a form of marriage for persons not professing the Christina, Jewish, Muslim, Hindu, Parsi, Budhist, Jain or Sikh religions.

The Plan of 1772 does not introduce British laws in Indian Presidency Towns.

Warren Hastings believed that it will be very difficult to get the obedience of the local people, population regarding English law, to make them understand and obey English law.

Shore the Governor General said that, grand object of our government in this country should be to conciliate the minds of the Natives by allowing them the free enjoyment of all their prejudices and by securing to them their rights and property.

Thus also began journey towards the preservation of Indian caste system and religion and division of Indian people on the name of religion.

Justice, Equity and good conscience –
Section XXI of Regulation III of 1793 provided that in cases coming within the jurisdiction of the Zilla and city courts for which no specific rule may exist, the judges are to act according to Justice, Equity and good conscience.

After this term Justice, Equity and good conscience was used many times in future laws.
That time this maxim played great role, as in beginning professionals were not appointed as judges and also Indians were not familiar with such court systems.

Indians only knew about one man show judicial system.
Kazi or Pandit or local village religious Mandir, temple babas and Panchayat of rich people
And everyone was busy for his own benefit.

The regulations were passed to improve the legal system in India.

Bengal code starting year 1793 up to year 1834
Number of Regulations passed – 675

Madras code - period 1802 up to year 1834
Number of Regulations passed – 251

Bombay code started when Mountstuart Elphinstone became the governor general of Bombay.
He built the first bungalow in Malabar Hill, during his tenure as the Governor of Bombay, 1819 to 1827
But in year 1820 he appointed a committee for the codification of law.
Following were the task of the committee –

1- To revise and compress the existing regulations leaving out all that had been rescinded or had become unnecessary striking out all legal language and tautological expressions, to consolidate all regulations relating to one subject and reducing the whole to the utmost attainable simplicity in form and language

2- To embody with the above regulations all orders that had been issued by the government in answer to references or in explanation of the Regulations and which had the force of law without the legal form and without having been publicly promulgated

3- To ascertain the practice of the judges and collectors in cases which till then had been left to their discretion and to consider whether it would be expedient to embody the most generally adopted and successful parts of that practice into the Regulations so as to diffuse the knowledge of the system adopted and to secure it from being capriciously set aside or whether it would not be safe for some years longer at least for the officers to have a large discretionary power unfettered by former enactments.

4- To examine the native practices as they obtained in each district before its acquisition by the English and to consider whether any part of the same should be revived if it had been laid aside or secured by Regulations still in force.

5- To examine the codes of Bengal and Madras and to consider whether any of the Regulations in use under those presidencies were required in Bombay

6- To suggest which obvious improvements as might occur to the committee during the course of enquiry.

The committee studied everything for 7 years and new code was passed.
On 1st January 1827, the new code of the Bombay Regulation came into force in Bombay Presidency.
And all the previous 79 regulation acts were abolished.

This new code was called as or is known as Elphinstone Code.

Regulations were in order of subject matter.
The code consisted of 27 Regulations; these regulations were subdivided into chapters and sections.
When Indian Penal code was introduced this code was abolished.

The main problem with these regulations was that the legislative and executive powers were enjoyed by same person.

Legislative means – Law making authority and power.
Executive means – a person who got power to carrying into effect the laws.
Thus law maker and the person who made law was same person.

Today also India is facing the same problem.
Law maker is a politician
Who executives the laws – The organizations who execute the laws work under the politician, these organizations can not go against the will of the politician, law maker.

Thus hope you understand the problem now clearly.
Why India needs to change the system of administration.

The Elphinstone Road railway station and the Elphinstone Circle were named after Lord John Elphinstone his nephew, who also became Governor of Bombay in 1850s.

After India got Independence in 1947 Elphinstone Circle was renamed after Benjamin Horniman, editor of the Bombay Chronicle

Elphinstone College is an institution of higher education affiliated to the University of Mumbai. Established in 1856
Mountstuart Elphinstone before leaving Bombay ,
was responsible for beginning higher education in the city. Rs.2, 29,636.00 was collected by public subscription to fund teaching professorships in the English language and the Arts, Science
The College was formally constituted in 1835.
The classes commenced in 1836, at Town Hall, with the first two professors:
Arthur Bedford Orlebar (Natural Philosophy)
And John Harkness (General Literature).

University of Bombay was established in the year 1857. Inception classes were held at Elphinstone College and were subsequently moved to the present fort campus.

Sir J J School of Arts was founded in 1857 and was instituted to take up drawing classes. Initial classes were held at Elphinstone Institution.

Below is the photo of Elphinstone College –

Suggested Reading –

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


Reality Views by sm –
Friday, November 12, 2010