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.
See: Mitch Fraas, ‘The First Fifty Appeals from East India Company Territories to the Privy Council 1679-1774’.
Post 1726: Mayor’s Courts
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. Bombay was actually Crown territory (acquired from the Portuguese as royal dowry) transferred to the Company, whereas in Madras and Calcutta, the Company settlements grew around the Company’s trading stations and on lands leased from Indian rulers. The jurisdiction of these courts was limited to the city they were located in, and to British subjects. It was provided by explicit legislation in 1753 that Indians were not subject to their jurisdiction unless they chose to be. Nevertheless, the bulk of the business of these courts was provided by Indians – and scholars have speculated as to the reasons. The lack of alternative tribunals in the area, the lure of a winner-take-all form of justice, and active forum shopping by litigants disadvantaged in other courts have been proposed as some of the possible reasons. The records of Mayors’ Courts offer glimpses into restless commercial networks extending from Britain to the Arabian and Persian coasts to India to Southeast Asia, ad hoc and disputed forms of local authority exercised by the Company’s officials, and Jewish, Armenian, British and Indian merchants, agents and their families jostling alongside.
J.D.M. Derrett, ‘The administration of Hindu law by the British’, Comparative Studies in Society and History, 4: 1 (Nov. 1961), pp. 10-52
C.J.B. Larby, ‘The Centenary of the High Courts of Calcutta, Bombay and Madras’, The International and Comparative Law Quarterly, Vol. 12, No. 3. (Jul., 1963), pp. 1044-1048
Mattison Mines, ‘Courts of Law and Styles of Self in Eighteenth-Century Madras: From Hybrid to Colonial Self’, Modern Asian Studies, Vol. 35, No. 1 (Feb., 2001), pp. 33-74
Nandini Chatterjee, The making of Indian secularism: empire, law and Christianity, 1830-1950 (Palgrave, 2011) [Despite the title, Chapter 3 has substantial discussion on mayors’ courts in the early eighteenth century.]
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. 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 (13 Geo. III c.63), which was enacted ‘for the better management of the said United Company’s affairs in India’.
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). 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 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 Begum, 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.
Barbara Metcalf and Thomas Metcalf, A concise history of modern India (Cambridge, 2006), Chapters 2 &3 (for a general overview of the context)
Lauren Benton, ‘Colonial law and cultural difference: jurisdictional politics and the formation of the colonial state’, Comparative Studies in Society and History, Vol. 41, No. 3 (Jul., 1999), pp. 563-588
Mithi Mukherjee, India in the shadows of empire: a legal and political history, 1774-1950(New Delhi: Oxford University Press, 2010)
Post-1862: The High Courts
Such confusingbifurcation, 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, and they are all listed under “India”, when you use the search function of the catalogue on this website. 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. On this subject, please see other essays on this website, related to the growth of the legal profession around the British empire.
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.