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THE CREATION OF THE APEX COURT: A LOOK INTO IT’S PAST AND PRESENT
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THE
CREATION OF THE APEX COURT: A LOOK INTO IT’S PAST AND PRESENT
AUTHORED
BY - PRATYUSHA GHOSH
JINDAL
GLOBAL LAW SCHOOL
Abstract
The
history of courts in India has been a predominant sight since time immemorial.
It can be traced back to village level disputes which were solved by the
Panchayats that are the oldest form of courts. It has since then subsequently
evolved from Mayor’s court in Fort St. George in Madras which was created after
the Charter of 1687 was passed for the creation of the first Supreme Court in
Calcutta owing to the Regulating Act of 1773. According to me, the
establishment of Supreme Courts under the Regulating Act of 1773 was the
turning point for the future course.
A
brief history
The
East India Company had become a dominant part of India and its politics, but it
was constantly under the fire for poor management, mistreatment of the Indian
principles and corruption. To put a halt on it, the Regulating Act of 1773 was
passed by the East India Company. The regulating act was introduced as a
regulating bill in the House of Commons which was severely criticised. Edmund
Burke denounced it as “an infringement of national right, national faith, and
national justice. Irrespective of this, the act was passed. The charter of 1774
was passed under the authority of the Regulating Act, 1773. The charter
introduced the Supreme court of Judicature at Calcutta, and it was a Crown’s
court. Established in Fort William, it replaced the mayor’s court in Calcutta.
The regulating act of 1773 altered the trajectory of legal history in India and
its implications can be seen even today. It provided legislation on which the
East India Company’s activities and affairs were regulated. The charter was
also one of the reasons for the changing social, economic and political
environment in during the company’s reign.
The Supreme Court Of Judicature
The Supreme court of Judicature was established
in Calcutta at Fort William. It also acted like a court of record after the
abolishment of the mayor’s court as all the records and proceedings were
delivered to them. The court constituted of one Chief justice and three puisne
judges. Subsequently, all of them had to be barristers. The Charter of 1774
appointed Elijah Impey as the first Chief Justice and Robert Chambers, Stephen,
Ceaser LeMaister and John Hyde as the first puisne judges. The authority of the Supreme court extended from Bengal, Bihar and
Odissa. The court was
also allowed to give judgements on British subjects and Indian inhabitants who
gave in writing that the matter could tried in the Supreme Court. The establishment of the Supreme Court at Calcutta was on an
experimental basis and the authorities preferred to wait and see its fruitful
results before establishing such a court anywhere else.. At this point, the
English East India company was facing several issues and one of the primary
issues was not having uniform judiciary that could uphold the law and maintain
its sanctity. In the early years, the Supreme court received backlash for being
corrupt and incompetent along with having limited jurisdiction- civil and
criminal involving British subjects. Overtime, one can witness the expansion of
its jurisdiction and then they started hearing Indian cases as well. Although
formal authority remained in the hands of the Governor and Council, the whites
of Calcutta, along lines followed by the inhabitants of towns without effective
corporations in contemporary Britain, developed institutions which they could
use for their own purpose.
To summarise, the Supreme court of Calcutta
has played a very important role and laid the foundations of modern Indian
judiciary. It set the precedent for the interpretation of laws and statutes,
established the principle of judicial review and provided a platform for the
redressal of the grievances to all residents of India.
Supreme Court of Madras and Bombay
After the
establishment of the Supreme Court in Calcutta, it was moved forward to Madras
and Bombay. The recorder’s court were abolished in order for the Supreme court
of Madras and Bombay to be created. The recorder’s court had its jurisdiction in civil, criminal, ecclesiastical and admiralty
cases over the British subjects residing within the British territories. There
had been a constant need for evolution of the legal machinery and this is when
the recorder’s court gave way to the Supreme Court. The Crown, by letters
patent issued on 26 December 1800, abolished the Recorder's Court and
established the Supreme Court at Madras which came into being on 4 September
1801. Sir Thomas Strange, who was previously the Recorder, was named Chief
Justice of the Supreme Court, with Henry Gwillim and Benjamin Sullivan as the
other puisne justices.
The Crown's Charter that established the
Supreme Court was issued on 8 December 1823 and the Supreme Court was formally
inaugurated on 8 May 1824. It consisted of Sir E. West CJ and, two other puisne
judges, Sir Charles Chambers and Sir Ralph Rice. However, the Supreme court of
Bombay had conflict with the government of Bombay. The section 30 of the
charter act prohibited the court from interfering with the matters revolving
around revenue even with in Bombay itself. Natives were likewise excused from
appearing before the Supreme Courts in Madras and Bombay unless the
circumstances demanded that they do so in the same way as in a native Court.
The Supreme Court's jurisdiction was narrowly restricted to the town and island
of Bombay. It had no appellate authority over the Mofussil Company courts. In
terms of marine offences, the Charter limited the Supreme Court of Bombay's
powers to those who would be subject to its usual jurisdiction.
Laws and rules
The Supreme
courts of Calcutta, Madras and Bombay were heavily influenced by English and
Indian traditional laws. The various
sources of law that were recognized the English Common Law, the statute law
that was prevalent in England in 1726 and had to face no alterations by the
Legislative council of India and the statute law that had been expressly
extended to India since 1726. The Supreme court was also empowered to create
rules and regulations to overlook its own proceedings and apply regulations
made by the governor -general-in- council. Cultural and religious law like
Hindu and Mohammedian laws were also followed. They were used in times of cases
regarding inheritance, goods, succession and all contracts in which the parties
belonged to either of those religions.
Importance Of The Regulating Act
The Regulating act of 1773 played a
major role in the smooth functioning of the Supreme courts. It introduced the
principal of a separate and independent judiciary based on English law
principles. A modern legal system was developed based on the law and protection
of human right. The regulating act was the biggest pawn
that the East India Company had. It was their best effort to centralize and
streamline governance in India. The supreme court played a very important role
in this system as it was the place that enforced the rule of law which was the
first step at centralization. The supreme court was vested with various legal
powers as it also had a defined jurisdiction which comprised of all the British
subjects in the beginning. It could hear civil and criminal cases and cases
that involve dispute between British and Indians. The power of judicial review
was given to them which allowed them to review the decisions of the lower
courts. This gave the Supreme court of Calcutta a higher prestige and sanctity.
It abolished the dual system of government in Bengal and established a single
authority under the Governor-General, Warren Hastings.The centralization of
power that was crucial for the smooth functioning of the Supreme Court.
Fall of Supreme Courts
The India High courts act was
established to create various high courts for the whole of India replacing
Supreme courts. The high courts had the distinction of being the apex court for
all matters until the introduction of Federal Court of India under the
Government Act 1935. This act for the reason for the separation of power
between the centre and the states. The federal courts had then replaced the
high courts. Their jurisdiction was wide and they could hear appeals against
judgments of the High courts.
Rise of the Supreme Court
After Independence, the constitution
of India came into existence on 26th January 1950 and soon after the
Supreme court was established with a brand new makeover and new set of powers.
According to law, the Supreme court was made the new apex court and their
decision was binding to all other courts. This is also what comprises of the
modern day supreme court of India. The Supreme court also heads over cases
which involve state and state disputes or state and centre disputes. One very
prominent example of state vs. centre dispute is the disaster management Act,
2005 which was invoked during the Covid 19 pandemic. This caused problems between the states as
the central guidelines are binding and the parliament cannot legislate matters
of public health.
Evolution of mayor’s court to modern day Supreme court
The charter of
1687 was responsible for the creation of the mayor’s court at St. Fort George
in Madras. Its jurisdiction was exercised in civil and criminal cases. The
quorum consisted on one mayor and two aldermen. The stark evolution of the
Supreme court from the Mayor’s court is still visible and reflected on a modern
day. One of the biggest difference is the law and procedure. There was no
specific law and procedure laid down for the old mayor’s court. Impartiality was also an issue as most cases
since the mayor’s court were judged on the principles of equity and good
conscience. It is justifiable as it was the first body with legal authority. In
modern day supreme courts, cases are judged based on the provisions and as our
constitution is the largest one and is extremely detailed with 395 articles, 22
parts and 8 schedules, there is not a lot of scope for mismanagement.
Jurisdiction was one of the major differences of the mayor’s court and the
supreme court. The mayor’s court had local jurisdiction whereas the supreme
court is the apex court and is also called the law of the land. The mayor’s
court and supreme court might have major differences but on close inspection,
they have a few similarities as well. The Charter of 1687 considered as the
base for modern progressive ideas of separation of judiciary from the executive
as it is followed even today. Just like in the mayor’s court, the quorum
consisted of one mayor and two aldermen, in the modern day, the supreme court
is also headed by a quorum with a bench consisting five judges and the head of
the Supreme court is the Chief Justice of India who as of today is Dhanajaya Y.
Chandrachud.
Conclusion
The judicial
system is the pillar on which any country’s democracy stands. It ensures that
justice is served and punishment is met to the guilty. Courts have been a part
of the system since time immemorial. Whether it is the mayor’s court or the
current day Supreme court, it has been established for one thing, upholding the
law and they have worked for the same cause. They are the final arbitrators for
legal disputes and have the task of interpreting and applying the law in a fair
and partial manner.
Bibliography
·
Visheshwar Dayal Kulshreshtha, and Sumeet Malik. V. D.
Kulshreshtha’s Landmarks in Indian Legal and Constitutional History.
Lucknow U.A., Eastern Book Co, 2016.
·
Charles River Editors. The British Raj : The History and
Legacy of Britain’s Imperialism in India and the Indian Subcontinent. South
Carolina, Charles River Editors, 2018.
·
Metcalf, Barbara D, and Thomas R Metcalf. A Concise
History of Modern India. Cambridge University Press, 28 Sept. 2006.
·
Marshall, P. J. “The White Town of Calcutta under the Rule of
the East India Company.” Modern Asian Studies, vol. 34, no. 2, 2000, pp.
307–31. JSTOR, http://www.jstor.org/stable/313065. Accessed 26 Apr.
2023.
Article Information
THE CREATION OF THE APEX COURT: A LOOK INTO IT’S PAST AND PRESENT
Authors: PRATYUSHA GHOSH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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