In this article, Akanksha Misra of Symbiosis Law School, NOIDA discusses the judicial reforms of Warren Hastings and the advent of Adalat System.
After the Britishers had acquired the Diwani rights of Bengal, Bihar and Orissa in 1765, there came up the concept of Mofussils which was used to refer to the territories which surrounded the presidency towns that were brought under the control of Britishers. Though there was well established system of a judicial set up in the presidency town of Calcutta, Bombay and madras under the garb of Mayor’s court and Court of Governor-in-council but the same was required in these adjoining areas which were to be called Mofussils.
Judicial system in Mofussils
After the Diwani rights were attained by the colonial giant, the role of proper implementation had fell on the then governor of Bengal presidency- Warren Hastings, as his predecessors starting right from the times of Lord Clive had condoned the oppressions of Ryots by Zamindars and petty tyrants which was proving to be detrimental to the colonial administration in these areas. Keeping into mind such a corrupted set up, Warren Hastings went on to introduce reformative judicial measures because of the following reasons:-
1. Connection between Revenue and judicial administration:
Revenue administration was a crucial function for the Britishers, not to mention that it was one of the major source of their finances, but to collect revenue it was essential that there was property in the provinces and the prosperity could be preserved only if there existed an order of peace so that people did not get distracted from their occupational works, specially those engaged in agricultural occupation. Such a state of peace would have given them impetus to improve so that in the end they will be in a position to meet the government dues. This peace and order again depended upon security of life and property which could have been ensured only if there was a proper judicial system in place, which at the time was absent.
2. No centralized judicial set up:
With the dissolution of the Mughal empire, and weakening of the Nawabs power in Bengal and surrounding areas, the only judicial set up which existed also broke down such that every person who had a local authority or power (Zamindars etc) began to exercise judicial power as well, in order to achieve self-aggrandizement. Now the Kazis were not selected on the basis of merit or character but on the basis of degree of favour that they forwarded to officials. And since they were not meritorious, they began to misuse their power as there was no system of checks placed on them.
3. Corruption in the courts:
Moreover, even the courts which were so had become corrupt as the courts used to charge commissions from the parties on the amount that used to be recovered by them by the help of court and this practice was against the very principle of natural justice as such practice made judges party to the cause they decided by making them a profiteer from the case. This practice was common also because of the lack of motive or incentive for the judges to act impartially. They did not even use to get a regular salary and thus adopted to such a bribe culture. It was highlighted by Arthur Keith that ‘courts were the instrument of power more than an instrument of justice’
4. Atrocities of Englishmen:
The incursion of the Englishmen made the judicial system even more worse. The company servants used to seize the lands or properties of any Indian against whom they used to have any kind of claim. Further, they even used to hold such an Indian as their prisoners, not releasing them until the claims or debts were paid. In doing so, the company servants did not even used to seek consent of the officers of the Nawab’s Government which at that time was too weak and thus, were forced to overlook such disputes.
JUDICIAL PLAN OF 1772:
Under the prevailing circumstances mentioned above, Warren Hastings went on to introduce a scheme of judicial administration in 1772 along side a system of revenue administration which went on to lay foundation of Adalat system in India.
Under this plan the territory of Bengal, Bihar and Orissa was divided into multiple districts and in each district, an English servant of company was appointed as the collector who was to be responsible for collection of revenue alongside having judicial powers.
Different courts in Adalat System: (in order of the hierarchy)
1. Small Cause Courts
These courts were present in each of the village or pergunnah and used to deal with small or petty cases. Decisions of these courts used to be binding up to the value of Rs 10. these courts were headed by either the village headman or the head farmer of the respective pergunnah.
2. Mofussil or district courts:
- Mofussil Diwani Adalat- these courts used to be present in each district and had jurisdiction over the revenue and civil cases including the disputes related to marriages, inheritance, castes, debts, contracts, disputed accounts, personal properties, partnership and demand on rent. It used to have pecuniary jurisdiction of up to Rs 500 such that decisions of this court up to this amount was final. Collector of the district use to act as the judge of this court who use to work in assistance with the native law officers such as the Kazis and Pundits. These law officers used to assist the judge as the collector did not has the knowledge about the personal laws of the Hindus and the Muslims which was to be applied to different disputes which were presented before the court.
- Mofussil Nizamat Adalat- these courts were also known as Fauzdari Adalats. These courts were also present in each district but unlike the mofussil Diwani Adalat, it used to deal only with the criminal cases. Further, it was not empowered to try cases involving death sentences or cases demanding forfeiture of property of the accused as such cases were to be submitted to Sadar Diwani Adalat for final orders. These courts were presided over by the Muslim law officers only. The Moulvi used to expound the law, while the Kazi and the Mufti used to give Fatwa and render the judgment accordingly. But alongside these officers of law, collectors also used to have an important role in these courts which was that of a supervisor. He used to see that all the necessary witnesses were heard, that the cases were tried regularly and that the judgments were impartial.
3. Sadar or Provincial courts:
- Sadar Diwani Adalat– this was the apex court for civil cases in the province. It used to have both the appellate as well as original jurisdiction as it not only used to hear appeals from Mofussil Diwani Adalat but also used to take up cases which involving dispute of over Rs 500. It used to charge five percent of the amount of dispute on each petition or appeal. It was presided over by the governor and his council, and was located in the presidency town of Calcutta. Its first sitting took place on 17th March, 1773.
- Sadar Nizamat Adalat– this was the apex court for criminal cases in the province. Similar to Sadar Diwani Adalat, it also used to have both original as well as appellate jurisdiction. As mentioned above, it used to have specific jurisdiction to decide over matter of death sentence and forfeiture of property. In cases of death sentence, the death warrant was prepared by this Adalat and was to be signed by the Nawab as the head of the Nizamat. This court was presided over by Daroga-I-Adalat who used to act as the judge of this court. He was assisted by a Chief Kazi, a Chief Mufti and three Moulvies. Similar to Mofussil Nizamat Adalat, there used to be a supervisory authority in the form of Governor-in-Council who used to keep a check over the functioning of this court. It was earlier located in Calcutta but was later shifted to Murshidabad, where the Nawab resided, in order to reduce the effort which used to be there to get his signature in cases of death sentences. Another development which was seen later was the development of the office of Naib Nazim in which Mohd. Reza Khan was appointed, who was to work and give assent on behalf of Nawab.
Figure 1: Adalat System (lines depict the direction of Appeal)
Miscellaneous provisions under the plan to promote impartial justice:
All cases were to be heard in open courts such that anyone was able to observe them. This ensured that the transparency was maintained and also helped in maintaining the trust of people in the judicial authority. Apart from this, all Adalats at the district level or lower level were to maintain records in the form of register of cases heard and decided such that the same were to be sent the Sadar Adalats. This was a major step which could have helped in curbing the misuse of power by the judges as they were under constant check of the apex courts and misdeed on their part could have come to light.
Introduction of new civil and criminal procedures and laws:
In case of civil procedure, a rough and ready procedure for hearing of civil cases was adopted under which, after the plaintiff had filed a petition of complaint, the defendant was to give answers (reply) after which the Adalat was to hear the parties viva voce and if necessary, evidence was to be examined. It was only after all this, a decree was passed by the court. Moreover, there was introduction of a new limitation period which was to be 12 years from the date of dispute such that any case being filed after that period would have been considered time barred. This provision can still be seen in our procedural codes. Further, a system of arbitration was also introduced to assist the functions of the civil court.
In the case of criminal procedure and laws, focus was shifted towards introduction procedure and laws in order to prohibit dacoity and restrict the mutilation as a form of punishment. Dacoity was very rampant in the country and to reduce the same strict laws were made. Under these laws, a dacoit was to be executed on the conviction such that village shall be fined and the family member of the dacoit would be made slaves of the state. Mutilation was disliked by Warren Hastings as he believed that a criminal getting mutilated as punishment, instead of improving him as a person rather made him a permanent burden of the society. However these anti mutilation laws remained just in text but were not enforced in reality owing to the resistance which would have been shown by the Muslim law officers who were reluctant to deviate from the texts of the Muslim law.
An appraisal of the plan:
The plan of 1772 was appraised for its efficiency which was a creditable achievement for Warren Hastings, given the limitations of the available resources. Sir John William Kaye, had rightfully called him “the Infant Administrator” because keeping in mind the fact that company was still in its initial stage, it was big achievement for the governor of Bengal to implement such a system. This system was praised for being impartial and inexpensive along with being easily accessible to the public who did not have to travel to provincial courts thus saving their time and money. The old system of commission which was exacted by the judges from the parties was now replaced by a court fees which was to go government thus adding to revenue of the government while at the same time minimizing the bribe culture. With the beginning of the Adalat system the judicial powers of the Zamindars were also abolished thus putting an end to oppression of the farmers.
Defects of the 1772 Plan
1. Insufficient number of courts at village level (small causes courts)-
There were very less number of small causes court present in the village areas and even the courts which were there had pecuniary jurisdiction of upto Rs. 10 only which was too small in amount in many cases. Thus, a dispute of slightly greater amount had to be referred to district courts which again used to be expensive and time consuming for people living in these areas which was in great number as the means of travel was not adequate.
2. Concentration of too much power in the hands of collector
Too much power was concentrated in the hands of the collector in the district as they used to be the administrator, tax collector, civil judge and supervisor of criminal judicature which led to following issues:-
i) Party to the revenue cases- Since he was the civil judge along the tax collector, he used to be party to the dispute and thus it was against the principle of justice.
ii) Carrying their private trade- The collector also started carrying their own private trade as they were able to monopolise their trade through their powers for their own benefits even if it was to the detriment of people.
iii) Difficulty in supervision of collectors- It was difficult for Calcutta council to supervise and keep check on the collectors as they used to be preoccupied in their own work and also because the means of communication was poor.
JUDICIAL PLAN OF 1774
The defects of Plan of 1772 was apprehended not only by Warren Hastings but also by the company director who asked the governor and council to withdraw the collectors and search for an alternate arrangements and thus the Calcutta government went on to implement the new plan for collection of revenue and administration of justice on November 23, 1773, and put it in force in January, 1774.
Features of Plan of 1774-
1. Appointment of Amils/Diwans
The collectors were replaced by the Amils or Diwans who were appointed in each district. He was to act as revenue collector as well as judge of Mofussil Diwani Adalat.
The territory of Bengal, Bihar and Orissa was divided into six divisions headquartered at Calcutta, Murshidabad, Dinajpur, Dacca and Patna such that each division used to have several districts under its command. For example- Patna division had the whole of bihar under it.
3. Provincial Councils
A Provincial Council consisting of 4-5 covenanted servants of the company was created in each divisions which had the following functions:-
i) Supervision of revenue collection– They were to supervise the collection of revenue by the Amils.
ii) Hear appeals from Mofussil Diwani Adalat– They used to hear appeals from Mofussil Diwani Adalat such that an appeal lie to Sadar Diwani Adalat if the dispute involved matter above Rs. 1000 in value.
Thus, it became link between Mofussil Diwani Adalat and Sadar Diwani Adalat and all cases irrespective of value were appealable in the Provincial Council.
iii) Court of first instance– It also had an original jurisdiction and used to act as court of first instance in the divisions where they were located such that cases arising in the division town(headquarters) could be directly referred to these courts.
It proved to be beneficial as an appeal system was created close to district adalats and thus supervision of the working of district judges was possible which was not in the previous case of governor and council.
Defects of the 1774 Plan
Just like the collectors, the members of the provincial council were also potentially mischievous and could have monopolised the trade within their jurisdiction. However, they were more distrustful in comparison to collectors because the collectors used to be junior servants and could have been controlled by the governor and council but these members used to the the senior members of the company having a status equal to that of any member of the council and thus the governor and council could not control their actions because of their pull and influence. Thus, people putting themselves at the mercy of the Provincial Council would not dare to raise their voices against their unjust treatment.
The system was said to be ahead of its time. Every minor deficiency was attempted to be rectified by the governor general of Bengal. The system so created was also assisted by the Regulating Act of 1773 which led to the creation of supreme court with an aim to separate the judicial administration from the revenue administration as both were very much connected since the same officers often use to have both the duties of revue collection and adjudication but still it was not achieved as per the expectations and thus an another attempt was made to eliminate the deficiency in the form of reorganisation of the adalat system in 1780 which observed the official separation of the revenue and judicial administration. The Provincial Councils which were tasked with both revenue collection and imparting of justice were now limited to collection of revenue and handling of the revenue cases while all the judicial function handed back to diwan adalats which were established in each of the Provincial Councils as well that is, Calcutta, Murshidabad, Dacca, Burdwan, Dinapur and Patna.
Even after this reform, the adalat system was not able to achieve the perfection so desired by Hastings but the existence of such a system of judicial administration in itself was praiseworthy. This system further led to the system of courts which exist even today.