JURISDICTION OF PRIVY

COUNCIL IN BRITISH INDIA

LEGAL HISTORY

SREELAKSHMI K M,1384
THIRD SEMESTER
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ACKNOWLEDGEMENTS

I would like to express my sincere gratitude for providing me with such a wonderful
opportunity to work on the topic ‘The Jurisdiction of Privy Counci in British India’.It was very
informative and interesting.I would like to thank you for your guidance and patience in helping
me successfully complete this project.
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CONTENTS

ACKNOWLEDGEMENTS 1

LIST OF AUTHORITIES 3

HISTORY OF PRIVY COUNCIL 4

OUTLINE OF THE WORKING OF THE 6

PRIVY COUNCIL

PROCEDURES FOLLOWED 11

THE LAST STEP 13

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LIST OF AUTHORITIES
 V.D.KULSHRESHTHA.LANDMARKS IN INDIAN LEGAL AND
CONSTITUITIONAL HISTORY,(B.M.GANDHI,8,2005)

 JUSTICE M .RAJA .NOIS,LEGAL AND CONSTITUITIONAL HISTORY OF

INDIA

 J.K MITTAL ,INDIAN LEGAL ANS CONSTITUITIONAL HISTORY(2004,Ed14)

 M.P JAIN,OUTLINES OF INDIAN LEGAL AND CONSTITUITIONAL

HISTORY(JUS.J B PATNAIK,YASOBANT DAS,RITA DAS,Ed7 ,2016)

Articles:

 Muddiman, A. (1919). British India. Journal of Comparative Legislation and

International Law, 1(2), 136-143. Retrieved from http://www.jstor.org/stable/753253

 Pollock, F. (1906). The Jurisdiction of the Privy Council. Journal of the Society of
Comparative Legislation, 7(2), 330-332. Retrieved from
http://www.jstor.org/stable/751861
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History of Privy council

The Norman Conquest took place in 1066,the most important structure being its strong central
government capable of taking care of the legislative,executive and Judicial powers,the ruling
body of the government was Curia Regis which is primarily a feudal council consisting of all
the tenants in chief of the crown,whivh included all royal officials but the king could summon
anyone he pleased.There were two classes primarily in existence.The larger assemblies and the
smaller frequent meetings,and house of lords can be traced back to the larger assemblies.

The larger assemblies used to be held in times of large festivals and other great occasions , laws
would be discussed about also disputes with regard to high personages and similar causes
were settled.The smaller class assemblies consisted of royals and these royals were later found
to be core from which many executive , centralised courts etc.. arose.The smaller assembly
was concerned with everyday business mostly of administrative and financial matters leading
to curia regis later being the court for all matters1As the work parcelled out,the commom law
courts were born and the curia Regis is is still considered the mother of all courts.

A council was formed as the kings most inner and important body.The 15nthe century Englad
had Tudors on the throne after the The battle of Bosworth leading to the the Normans ruling
through the curia and the Tudors ruling through the Council,thus they made use of the council
board and the court of star chamber star chamber,the former soon to be called the privy
council,later the oppresiion and tyranny lead to parliament winning over the king with the
council losing all the powers of all cases of England except the right of appeals and from
certain distinct areas, thus ita because of the Tudors that the council became exclusive for the
appellate jurisdiction and the first records of the same can be seen in 1572, with the existence
of a judicial committee with nonlegal qualification which was corrected and set right later.

1
M.P JAIN,OUTLINES OF INDIAN LEGAL AND CONSTITUITIONAL HISTORY(JUS.J B PATNAIK,YASOBANT DAS,RITA
DAS,Ed7 ,2016(33-339)
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.In 1926,Viscount Haldane opined on the curiousnature of the privy council,”we ae not
ministers in any sense instead it is just a constituitional anomaly that we are an body as advisory
committee to the king,while in pure judicial sense we are judges in the for m and name of the
council.It is ur report on what is to be don ethat is sent to the sovereign with all the sens e of
justice that the sovereign puts into action.The councillors does not have a specific dominion
,that is not an English body ,with no specified dominion to be selected from ,strictly speaking
its not eve a body of councillors with a specified location, the sovereign as the sovereign of the
empire had retained the prerogative of justice and ,but the Imperial statute to which he assented
was modified only in Australia.The position of jurisdiction in brief was that it was as a result
of an inherent prerogative right and on proper occasions theduty of the King in Council
toexercise appellate jurisdiction, to set right justice to the maxmium extend and also to follow
procedure.An appeal is to be heard on civil or criminal matter by whichever party unless the
right to appeal has been specifically been removed,.The ancient right to hear appeals from
overseas was given statutory recognition under The Judicial Committee Act 1833,to receive
appeals under the customary jurisdiction or under the act itself.

Lord Bougham’s strong protest against laymen hearing appeals was the main reason for the
passing of this act.Only majority view is expressed to the e king who acts on its report and
issues order.What tekes place before the committee is strictly judicial proceeding ,that is
possesses power to advice the croen only Judicially.Civil Appeals are taken with or without
the special leave.Appeals without special leave are regulate by the Order in council or the
Imperial Act or The Local Act ,Only the majority view is expressed.Under the orders of the act
the the right of the appeal is regulated according to the disputed amount,a nd in addition the
local court may grant leave to appeal in other cases.In cases where the right lies thereof the
application is made from the court from which the appeal is preferred ,whether or not there is
a statutory right to do so.
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Outline of the working of the Privy council

The Privy Council’s jurisdiction over the Indian subcontinent grew in patches that extended
unevenly inwards from coastal locations, mirroring the process by which the East India
Company, incorporated in 1600, gradually acquired political power in the region. The result of
this process was that right up until India and Pakistan’s emergence as independent countries in
1947, ‘India’ as such did not form a jurisdiction. Instead, the courts that the Privy Council heard
appeals from were provincial tribunals, themselves taking appeals from lands far beyond the
subcontinent.

The earliest appeals to the Privy Council from India were not appeals against the decision of
any court, but petitions to the English Crown against alleged oppression by East India Company
officials. The earliest appeal from a court in India to the Privy Council was in 1679.Earliest
formal provisions for appeals to the Privy Council from courts located in India were provided
in 1726 , in the Charters of the Mayor’s Courts, established in the port cities of Bombay, Madras
and Calcutta with first appeal to governor in Council and then to the Privy council with 1000
Pagodas as the limit..2

Post-1773: Supreme Courts and Sadr Nizamat/Sadr Diwani Adalats

As the East India Company acquired formal political power over substantial areas in eastern
India (Bengal, Bihar and Orissa), the British Parliament grew more concerned to regulate its
activities. Measures taken included the appointment of the first Governor-General of India,
Warren Hastings, the assumption of supervisory authority by a standing Parliamentary
Committee (the Board of Control), and the creation of ‘Supreme Courts’, first at Calcutta, then
at Bombay (1823) and Madras (1802), manned by fully trained barrister-judges sent from
Britain.

2
J.K MITTAL ,INDIAN LEGAL ANS CONSTITUITIONAL HISTORY(2004,Ed14),(152-155)
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The first statutory provisions, that is, rules made by the British Parliament, that allowed for
appeals from Indian courts to the Privy Council, were contained in sec. 36 of the Regulating
Act of 1773 , which was enacted ‘for the better management of the said United Company’s
affairs in India’.

An aggrieved party had to present a petition before the court within a time period of six monhs
from the date of judgement.,asking for a leave to appeal in in a case of value of subject matter
above 1000 pagodas.In Criminal matters the SC was given full powers to grant or deny
appeals.In 1797 by charters in place of the judicial arrangements of Bombay and Madras the
Recorders Court was established. The recorders court gave way to Supreme Court in 1801
,Madras SC and Calcutta SC had regulations similiar in cases of appeals.In 1823 when in
Bombay by the crowns charter .established SC, the limit of value of subject matter was 3000
Bombay Rupees instead of 1000pagodas.In all cases each charter of Justice reserved the power
of the on the petition of an aggrieved party to grant of refuse appeal,also to reform or vary such
decisions according to royal pleasure.

The outcome of these changes was the creation of a strangely bifurcated legal system – whereby
the Supreme Courts of Calcutta, Bombay and Madras, quite like the Mayor’s Courts they
superseded, applied English law within the cities they were located in, and to British subjects,
once again with considerable scope for doubt in individual cases. On the other hand, courts
outside the main cities, were deemed to be ‘Company courts’ and were called, after the Indo-
Persian term, Adalat (place of justice). They were divided into Diwani Adalats (revenue and
civil) and Nizamat Adalats (criminal).

In 1781, 5000 euros was set as the limit of subject matter value.the first appeal was also in this
year under act of settlement.There wes a necessity to make rules regarding receiving and
forwarding of appeals since only the monetary limit had been prescribed. These courts, manned
by Company officials with little or no legal training and assisted by Indian legal officers,
applied a variety of laws, including modified versions of Hindu and Islamic laws. Appeals to
the Privy Council were sent from the Supreme Court on the one hand, and from the Sadr
Nizamat Adalats (Provincial Criminal High Courts) and Sadr Diwani Adalats (Provincial Civil
High Courts) on the other.

In its early days, the Supreme Court of Calcutta frequently clashed with the Company’s
government over its efforts to claim broader jurisdiction, especially over Indians. In some
cases, Indian litigants themselves actively sought the protection and entitlements that the
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Supreme Court could offer, both against the revenue-oriented Company officials, and the
provisions of other legal systems.

One such famous case was that of a Muslim woman called Naderah Begum3, who, in her bid
to claim her deceased husband’s estate against other male relatives, challenged both provincial
Company officials and Muslim law officers employed by the Company. She may well have
been aware that the British judges of the Supreme Court would think of her as a victimised
Oriental woman – although she was clearly a very savvy litigant in her own right

.In 1797 the Gov-general in council passed a regulating act laying down rules of conduct of
appeal against the Sadar Diwani Adalats,in a tie period of 6 months with 50,000 Indian Rupee
equivalent as the limit of monetary valueof subject matter.In 1802 provisions made for
appealing fromm Madras Sadar Diwani Adalats without restriction on the appealable amount
hence normally taken to be 5000 Euros.As regards Bombay the first right of appeal wsas
provided in 1812,but seems like 1813 regulation act rescinded because of the doubts regarding
the competency of these courts to admit appealsto a higher authority,the confusion was cleared
in 1818

.But the same was rescinded in 1827 as new code was brought about still omitting the value of
the appealable amount hence it as a great hardship to respondents in case of appealing of trivial
amounts .An 1822 case where the appellant obtained leave of appeal from the Sadar Diwani
Adalat of Bengal ,Rajah Deedar Hossein vs Ranee Zuhoorunnissa 4evan after the trascripts of
the proceedings were forwarded ignorance of proceedings led to taking of no further steps
,when the appellant entered into an agreement with a firm in Calcutte, the agent in Calcutta
House in England became insolvent leading to a blankpause,later the case was dismissed
because of a plea of want of non-presecution by respondent later to be reinstituitedin 1836 with
the Privy Council judgement delivery in 1841.The case of Hunter vs Raja of Burdwan also
shows discrepancies.

3
J.K MITTAL ,INDIAN LEGAL ANS CONSTITUITIONAL HISTORY(2004,Ed14)

4
M.P JAIN,OUTLINES OF INDIAN LEGAL AND CONSTITUITIONAL HISTORY(JUS.J B PATNAIK,YASOBANT
DAS,RITA DAS,Ed7 ,2016)351-353
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Despite the separate regulation the sovereign had the right to accept or reject any of these
petitions without any regard to the respective regulations on the abovementioned presidencies.

Post-1862: The High Courts

Such confusing bifurcation, with many overlaps and gaps, remained the situation until
the amalgamation of these two court systems, the abolition of the existing courts, and the
creation of Provincial High Courts of Calcutta, Bombay and Madras in 1862. Other High
Courts were created subsequently,Then came the establishment of Federal Court ,The Federal
Court of India was a judicial body, established in India in 1937 under the provisions of
the Government of India Act 1935, with original, appellate and advisory jurisdiction.It had
limited appellate jurisdiction ,It functioned until the Supreme Court of India was established
in 1950.The certificate of leave was to be given by the High Court and denial of the same could
not be questioned by the FederalCourt.There was provision for appeal from any case of the
Federal Court. By exercise of original jurisdiction or by leave of the federal Court.

(Regarding the establishing of these supreme instituitions,The object was, however, to limit
the right of appeal from Indian High Courts to the Privy Council. But there were objections
that the establishment of a Supreme Court would mean an unnecessary and unjustifiable
expense.. The establishment of the Court of Appeal was desirable and could be conveniently
effected by an extension of the jurisdiction of the Federal Court.) Such a Court would sit in two
chambers - the first dealing with the Federal cases and the second dealing with British India
appeals.

The recommendation of! the Joint Parliamentary Committee has been given effect to in section
206 (S. M. Bose, Working Constitution of India. Thus, according to section 206, the Federal
Legislature has been given POSITION OF THE FEDERAL COURT an appellate jurisdiction
of the Federal Court, so as to make it a Final Court of Appeal from High Courts in ordinary
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non- constitutional matters, in substitution for the present right of appeal to the Privy Council
5
and to empower it to hear appeals in Civil cases from High Courts in British India

All Provincial High courts had civil and criminal jurisdictions, and appeals lay from them to
the Judicial Committee of the Privy Council. Of these, the Bombay High Court had a
particularly vast and complex jurisdiction, extending from the west coast of India to the island
of Zanzibar off East Africa, and to the Persian Gulf jurisdictions of Aden and Bahrain. The
creation and growth of the High Courts in the Indian subcontinent was matched by the growth
of an Indian bar and bench. Many such judges and lawyers played leading roles in the
nationalist movements of India and Pakistan.

In the 1930s demands arose in India for a final court of appeal located within the territorial
limits of India. Although the Federal Court of India was created by the Government of India
Act, 1935, its jurisdiction was very restricted and limited mainly to constitutional matters. Its
jurisdiction was expanded significantly only in 1948, more than a year after India’s
independence. In 1949, India abolished appeals to the Privy Council and in 1950 the Supreme
Court of India replaced the Federal Court.

5
Moitra, A. (1942). POSITION OF THE FEDERAL COURT IN THE CONSTITUTIONAL SYSTEM
OF INDIA. The Indian Journal of Political Science, 4(1), 95-100. Retrieved from
http://www.jstor.org/stable/42743012
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Procedures Followed
The act of 1833 constituted committee of privy council with specified members,which was
initially four with two assessors who had been judges in India previously .The initial number
of cases applied were too few because of the lack of knowledge of the In and regarding mode
of appeal and with regards to the monetary barriers .And even if the appeals were filed either
the delay in rendering justice was a basic defect or there wasn’t any remedy provided.In 1838
an act was passed regulating the value of subject matter and the limitation period.

The number of colonical judges was increased from two to five in 1895,in 1908 Judges from
India worked as the members of the Judicial Committee.Appoinment of assessors were not
made after a long time after the passage of the act but position improved after the Appellate
Jurisdiction Act was passed ,which provided that any person wo was or had been chief Justice
or Judge of the High Court in British India was a member of the Privy Council,he would be a
member of the Judicial Committeeif the Crown so directed After 1915 Judicial Committees set
in two divisions with at leats five members hearing appeals excusively from India .

After reorganisation the Privy Council acts as a regular court with respect to In Indian appeals
at 10,000 rs fixed,also with provisions for pending work.In cases of appealing from SC native
suitors did not find any difficulty in pursuing any appeals because the attorneys appointed
solicitors in England who dealt with the appeals,while those of the Sadar Diwani Adalat who
had only very fait idea of the laws and customs in practice in England found it difficult to fulfil
these requirements.The link of connection was present between the appellant and privy council
in the case of the Supreme Courts and the same was absent in the case of Sadar Diwani Adalat6
applications.Many at times the property ijn dispute was eaten up by public and private
debts,since the patient waiting for the results of the appeal availed zero results.Thus in 1832
board of control requested for a report for the best means to put all the old appeals pending to
decision.

6
V.D.KULSHRESHTHA.LANDMARKS IN INDIAN LEGAL AND CONSTITUITIONAL
HISTORY,(B.M.GANDHI,8,2005)
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The Final Step

After 1947,the Privy Council was reminiscent of the political subordination of India however
Privy Council was a respected body which had contributed tremendously to the Indian Legal
System.The Cental Legislature act 1948 tried to fill the legal lacunae arising out of the
abolishing of this appellaye system and the establishment of the Country’s own appellate
authority.By the time of the coming into affect of the Constituition pending appeals at the Privy
Council were disposed off even still there were certain cases left pending.In anticipation of the
new constituitio the Indian constituent assembly passed the Privy Council Jurisdiction
Abolishment act in september24 1949, and it it came into force on 10nth October.With effect
that the rest of the pending cases were to be transferred to the Federal Court.The last appeal
was disposed off by Privy Council on 15 December 1949,thus ending the 200year old
connection to privy council.7

 7
M.P JAIN,OUTLINES OF INDIAN LEGAL AND CONSTITUITIONAL HISTORY(JUS.J B PATNAIK,YASOBANT
DAS,RITA DAS,Ed7 ,2016)pg360-362