THE FIRST
BRITISH COURT OF JUSTICE
INTRODUCTION
The
Legal history of Bombay may be said to have begun in 1661,
when it became a British possession. The Town and Island of Bombay
was received by the British as a part of the dowry of the
Portuguese Princess Catherine of Braganza, sister of Alphonso VI, the
then Portuguese Monarch, when she married King Charles II . Bombay
then was little more than a small fishing village consisting of a few
straggling huts of Kolis, its indigenous inhabitants; and its harbour,
destined in the course of years to develop into the greatest and most
important commercial seaport in the East, sheltered only a few
fishing boats. Charles II transferred it to the East
India Company in 1668 for an insignificant annual rent of 10
Pounds
.
The remote ancestry
of the High Court, though interesting is not quite inspiring, until we
come to the Recorder's Court established under the Charter of
1798. Confining ourselves to the British period- for there is no
conceivable connection between our High Court today and such Courts
of law as existed in the Portuguese, and still earlier Muslim
eras- the judicial history of Bombay commences with the Charter of
1668 accompanying the transfer of Bombay from the Crown to the East
India Company. In 1670, the administration of Justice was in the hands
of Justices who held their sittings in the Custom Houses of Bombay and
Mahim. The system of 1670 was very elementary and suffered from several
drawbacks and the judicial system was too much identified with the
executive government of the Island.
The main architect of the Judicial
system during this period was Gerald Aungier, the Governor of Surat
Factory. He has been described as the "true founder" of Bombay. He was a man with liberal ideas and believed in a
impartial administration of justice without fear or favor. But he was
conscious of these defects and he was himself dissatisfied with
the judicial machinery. Aungier was advised by the Company to
select someone knowing something of law from amongst the Company's
servants in India. Aungier chose George Wilcox as the Judge
and the First British Court of Justice was inaugurated in Bombay in
1672 with due pomp and ceremony. Fawcett quotes a detailed
description of the opening ceremony on 8th August 1672.
There was a ceremonial
procession from the Fort through the Bazaar to the Guildhall
(court-house) in the following order :-
Fifty Bandaries in Green
liveries marching two by two.
Centues (Hindus) 20 Mooremen (Muslims) 20 Christians each representing
their several caste or sect marching two by two.
His Honour's horse of State led by an Englishman.
Two trumpets and Kettledrums on horse back.
The Justice of the Peace and Council richly habited on horse back. The
Governor in his Pallankeen with fower (four) English pages on each side
in rich liveries bareheaded surrounded at distance with peons, and
blacks.
The Clerke of the Papers on foot.
The flower (four) Atturneys, or Common pleaders on foot
The keeper of the prisons and the two Tipstaffs on foot, bareheaded
before the Judge.
The Judge on horse back on a Velvet foot cloth.
His servants in Purple serge liveries.
Gentlemen in Coaches and Palankeens.
On this occasion, he
delivered a speech full of very noble sentiments, eulogizing the
impartial execution of laws, and exhorting the court to do justice
without distinction of nationality or religion, not only in cases
between private parties, by even against the government. He
promised to protect the Judge in the discharge of his duties to the
best of his power and authority. In the concluding paragraph of his
speech addressed to the court he said :
"The Inhabitants of this Island consist of several nations and
religions, like English, Portuguese and other Christians, Moores and
Gentoos, but you, when you sit in this seat of justice and judgment,
must look upon them with one single eye as I do, without distinction
of nation or religion, for they are all His Majesty's and the
Hon'ble Company's subjects as the English are, and have all an equal
title and right to justice."
The speech does credit to the character of Aungier. He exhibited
a passion for fair, impartial and evenhanded justice. No one
could
have kept a higher ideal of justice than Aungier. It was a
good augury for the judicial system, but unfortunately the later
Governors did no to follow Aungier's traditions.
The setting up of an
Admiralty Court in 1684 under the Charter of 1683 opened the second
phase in development of the Bombay Judiciary. Dr. St. John, an
expert in Civil Law was sent by the Company to preside
the Court as Judge - advocate. But there was continuos clashes
between the Governor and the Court, and he was dismissed for his
refusal to subordinate his own judgment to the wishes and directions
of the Governor and Council. After Dr. St. John's exit, Justice
continued to be administered by lay person till late in the
eighteenth Century. Mayor's Court
In 1726, the issue of the charter by King George
I to the Company turned over a new leaf in the evolution of the
judicial
institutions. The Charter of 1726 introduced a uniformity of
approach and established similar judicial institutions.
Thus in 1726."The Mayor's Court" was established under direct
authority of the King. The Mayor and the nine alderman were to
constitution the Mayor's Court. The Court was to have authority
to hear and try all Civil Suits arising within the town and its
subordinate factories. For the first time, a right of appeal to
the King-in-Council from the decision of the Courts in India was
granted. The Mayor's Court was to be a Court of record and thus
had power to punish persons who might be guilty of its contempt.
Like the previous Court even the Mayor's Court was not completely
free of the executive influence as the aldermen were either the
Company's servants or other English traders who depended upon the
Company's permission to stay in India and were thus by and large at the
mercy of the local government. The Justice continued to be
administered by non professional judges.
In 1753 the Company obtained new Charter from King
George II., reestablishing the Mayor's Court. The new Charter
repeated some provision of the earlier Charter and created a Court of
Requests for the summary disposal of small causes. The Mayor's
Court with its inherent defects of Principle and personal
functioned for 70 years till 1798.
Recorder's Court
In 1798 the Mayor's
Court was abolished and in its place was established the Recorder's
Court, as per the Charter of 1798. Judicial administration in Bombay
was completely changed for the better by the establishment of
this Court. It consisted of a Mayor, three Aldermen and a
Recorder appointed by the Crown, who was to be a Barrister of not
less then 5 years standing. The first Recorder was Sir William
Syer. The official association of Indians in the
administration of law started with the establishment of this Court.
A Hindu Pandit
learned in the Law of the Shastras and a Mussalman Malvi,
learned in the Law of Shariat were appointed to assist the Recorder in
the determination of cases involving points of Hindu &
Mahommedan Law. With the Recorders' Courts a great step was taken
towards the elimination of the Executive from the Judicial
sphere. This Court was accumulated at first in Col. Jones's
House in Marine Street, and by 1800 in the Admiralty House, otherwise
known as 'Hornby House" which later became well known as the Great
Western Hotel, in Apollo street. This building accommodated the
Recorder's Court till 1824.
The Supreme Court
In 1773 the
Regulating Act was passed and Warren Hastings was appointed as the
Governor General of Bengal. The Supreme Court of Calcutta was
established to remove the evils of the prevailing system. In 1823, an Act of Parliament authorised the
Crown to establish a Supreme Court in place of the Recorder's
Court at Bombay by Royal Charter. The power vested in the
Recorder's Court were to be transferred to the Supreme Court. The
Supreme Court at Bombay was to be invested with the same powers
and authority and was to be subject to the same limitations &
restrictions as the Supreme Court at Calcutta by the 17th Section of
the
Act of 1823. The Court was formally inaugurated at Bombay on 8th
May, 1824.
The Supreme Court functioned
from 1824 to 1862. The purity and prestige of judicial
administration went an increasing. English barristers began
to practice in Bombay and some of them achieved distinction in the
High Court later. Several
notable judgments were given in the Supreme Court, which made an
important contributions to the development of Law in India. The
main inspiration of the Supreme Court and even the High Court in its
early years, was the Law of England: and apart from Hindu and
Mahommedan Laws, it was the principle of the Common Laws and Equity
which were embodied with slight modification in the judgments of the
Courts and the principle Acts of the Indian Legislature later. In
the first century of British Justice in Bombay , there is no record of
any Indian judge or lawyer. It was only after the
establishment of the High Court that Indian Barrister began to make
their solitary appearances in the High Court.
The Supreme Court had
its own deficiencies and its inadequacy as a Court of plenary
jurisdiction were borne upon the authorities in England. In
1852, it was urged upon the Parliamentary Committee for East India
Affairs that it was desirable that the Supreme Court and the
Sadar Adalats in each Presidency should be consolidated.
This led the passing of the India High Courts Act by the British
Parliament in 1861 for the creation of High Courts in the three
Presidencies instead of the Supreme Court and Sadar Adalats. After the
Muting of 1857, the Company was dissolved and the Government of India
was taken over by the Crown in 1858. This created a sense of
responsibility in the British Government for administration in India
and
a complete over hauling of the judicial system took place.
The
Bombay High Court
The
'Indian High Court Act' of 1861, vested in Her Majesty the Queen
of England to issue letters patent under the Great Seal of the
United Kingdom to erect and establish High Courts of Calcutta,
Madras and Bombay. The Indian High Courts Act, 1861 did not by
itself create and establish the High Courts in India.
The express and avowed aim of the Act was to effect a fusion of the
Supreme Courts and the Sudder Adalats in the three Presidencies and
this
was to be consummated by issuing Letter Patent. The Charter of
High Court of Bombay was issued on June 26, 1862.
The
Bombay High Court was inaugurated on 14th August ,1862.
The
High Court had an Original as well as an Appellate Jurisdiction the
former derived from the Supreme Court, and the latter from the Sudder
Diwani and Sudder Foujdari Adalats, which were merged in the High
Court. With the establishment of the High Court the Penal Code,
the Criminal Procedure Code and Code of Civil Procedure were
enacted into law.
The Letter Patent of the Bombay
High Court authorized 15 Judges, but it started with only 7. It is
remarkable that, for about 60 years thereafter, the High Court
managed to pull on with just 7 Judges, although with advancing years,
the laws and the litigation both multiplied. There were no
indications that this limited Bench was found inadequate to cope with
the work, till about 1919. With the armistice at the
termination of the First World War, there was sudden spurt of
litigation
in the City of Bombay. The number of Suites filed on
Original Side, which during War had dwindled down to about 500 rose to
about 7000, that the Prothonotary found it difficult to prepare daily
boards for 3 Judges. It was only then that an additional Judge
was demanded and was grudgingly granted . Bombay was lucky
or unlucky in having at this crisis a Chief Justice of
exceptional caliber, Sir Norman Mcleod, who instead of
multiplying Judges preferred to massacre suits and appeals.
The Charter of the High Court
also made it the supreme and final court of appeal in all cases, civil
and criminal, decided by inferior courts, except such as possessed the
requisite importance, pecuniary or legal, demanding a further appeal
to the Judicial Committee of the Privy Council.
Ever since the Constitution of
the Privy Council as the Court of ultimate appeal from British India
by a Statuette of 1833, the bulk of its business was from Indian
appeals; so much so that for Indian appeals, a Judge or a lawyer of
adequate Indian experience had later to be associated with the
Committee. The Bombay High Court has been represented on the
Judicial Committee by three distinguished judges, and four eminent
counsel; Sir Richard Couch, Sir Lawrence Jenkins and Sir John Beaumont,
all Chief Justices. The lawyers who practiced in Bombay
High Court before they were appointed to the Judicial Committee, were
Sir Andrew Scoble, Sir George Lowndes, Sir D.F. Mulla and Mr.
M.R.Jayakar.
The judgments of the Privy Council,
generally speaking, have been received in India with complete
satisfaction; and some of them contain illuminating expositions of
Anglo-Indian law, including principles of Hindu and Mahommedan
law. But on one or two occasions, owing to overlooking the
relevant section of an Indian statuette, or by a revolutionary
construction of a section, their decisions have created some confusion
and consternation
All the Charters of
the law Courts in India from the Mayor's Court down to the High Court
are silent as regards the jurisdiction of the Privy Council over
criminal cases in India.
The last appeal from India was
disposed of by the Privy Council on December 15, 1949. Thus came
to an end India's 200 years' old connection with the Privy Council on
January 26, 1950, the Federal Court gave way to the Supreme Court of
India under the new Constitution. The Supreme Court of
India is the highest Court of the land. and has been
empowered to issued directions, Order of Writs, like the Habeas
Corpus, Mandamus, Certiorari, Prohibition for the enforcement of the
Fundamental Rights which have been guaranteed by the Constitution of
the people of India. The Supreme Court has thus been made the
guardian of the freedom and liberties of the Indian people.
The High
Court was first housed in a building in Apollo Street called the
Admiralty House where the Recorder's Court and the Supreme Court
held their sittings.
The work on the
present building of the High Court was commenced in April 1871 and
completed in November 1878 and is situated between the University
Building and the Public Work Secretariat and is 562 feet in length by
187 in breadth. It general height to the east is 90 feet, and
the Central feature is 178 ½ feet in height. The
building which is early English-Gothic was designed by Colonel
J.A.Fuller, R.E. and was completed at a cost of Rs. 16,44,528 which
was about Rs. 3000, less then the sanctioned estimate. The walls are of
rubble and chunam faced with blue basalt roughly dressed and in shallow
causes. The Judges have two private stair cases on the western
side of the building in the Octagon tower an either side of the
porch. The main staircase and entrance for the general
public are on the east.
Some
unobserved architectural feature of the present building consists of
certain sculptures in odd nooks and corners of the walls and
ceiling on the western corridor, which display sundry heads of wolves
and foxes with counsel's bands round their necks. An
outstanding performance of a sculptor is in the first & second
floor depicting a monkey-judge (presumably suggested by Aesop's fable
of the judicial monkey and the two litigious cats) with one eye
bandaged and holding unevenly the scales of justice. There is a
tale behind this sculpture. It is said that there was a dispute
between the European building Contractor and the Sub-Con
tractor, who was a Parsi, over the division of spoils. The
Parsi brought a suit and lost. As some finishing touches had
yet to be done, the disgruntled suitor avenged himself upon Law and
Justice (both Counsel and Judge) in stone and plaster in the
aforesaid manner.
The true
symbol of Justice, the stone statue of the Goddess of Justice, is on
the battlement on the western front of the High Court building. She
is represented with both eyes bandaged and holding the Sword of
Justice in one hand and the Scales meticulously even in the other.
Benches of the High Court
After the reorganisation of
the States with effect from November 1, 1956, the territories of the
Bombay State and with it the jurisdiction of the High Court were
extensively extended.
Benches of the High Court
were established at Nagpur and Rajkot to deal with matters arising from
Vidharbha and Saurashtra districts respectively. In 1960 on the
formation of the State of Gujarat, the Gujarat High Court was set up.
In 1981 a Bench of the High Court was notified in Aurangabad and the
Permanent Bench was established in 1984 by the Order of the
President. In accordance with the High Court at Bombay (Extension of
Jurisdiction to Goa, Daman and Diu) Act, 1981, the Panaji (Goa) Bench
of the High Court for the Union Territory of Goa, Daman and Diu was
inaugurated in 1982. Later when Goa attained statehood in 1987 the
High Court came to have jurisdiction.
Over the two States
of Maharashtra and Goa and over the Union territories of Dadra and
Nagar
Haveli, and Daman and Diu. The High Court has at present a sanctioned
strength of 75 Judges.
