Happiness and prosperity of the people are the keys to ruling them. If we make people happier and more prosperous, we usually don’t face difficulty in dealing with them. Happiness and prosperity of the people were necessary even for the government from the point of view of its own stability and permanence in the country.
But many governments failed to understand this and continue fulfilling their mala fide goals after coming into power. The same happened with the British government in India. The government focused only on its private goals and didn’t work for the welfare of the people. In addition, it made people angry by often discriminating against people of British origin.
The Regulating Act passed in 1773 by the British Parliament gave recognition to the government of Calcutta and set up a Supreme Court at Calcutta. In addition, the Presidency towns of Bombay and Madras were brought together under the control of Warren Hastings i.e. the Governor General of India. Thus, this act set up a new legal framework in India making the people residing in these areas be administered by the rules made by the Governor and the Supreme Council of Bengal.
Discrimination in the administration of justice whether in policing, criminal prosecutors, trials, sentencing, or imprisonment can cause extraordinary harm to individuals and society alike, and have lasting consequences for future generations and the same happened in the case of India.
Discrimination in the administration of Civil Justice
Since the beginning of British rule, Indians were always discriminated juxtaposing to British subjects. Whether we talk about the appointment of Indians in the administration of civil justice, their salary or the laws and jurisdiction to which they were subject to, we find that British subjects always enjoyed some unfair privileges over Indians.
Forms of Discrimination in the administration of civil justice
Broadly speaking, the discrimination faced by the Indians in the administration of civil Justice can be divided into the following categories:
Discrimination in Jurisdiction of Courts
Under the Regulating Act of 1773, British-born subjects were exempted from the jurisdiction of the Company’s courts. The British-born subjects could only be tried by the Crowns Court. Thus, if a British man committed an offense, he could not be charged by the Company’s Court. He was immune to it. He can only be prosecuted in Crowns Court[i].
Even if a British subject filed a suit in a Company’s court, which had the jurisdiction with respect to the other party but did not have the jurisdiction over a British subject, then he had to write a bond to be bound by the decision otherwise the decision of the said court would not bind on the British subject.
The British subjects most of whom were merchants and traders who reside in Bengal. Bihar and Odisha but beyond Calcutta could recover their claims against the native inhabitants easily by resorting to the local Diwani Adalats. But the Indian inhabitants had no such reciprocal means against the British subjects against whom cases could be filed only in Supreme Court at Calcutta[ii].
Discrimination in appointment
The discrimination against Indians can be seen in other ways also. In the scheme of 1793, the highest judicial office that an Indian could occupy was of Munsiff. Britishers always believed that Indians from their character and bearing were unworthy of holding any position of responsibility and trust and those they could be employed only in humble positions.
As a result of this mindset, in judicial systems of 1790 and 1793 we can see that all the responsible positions were occupied by the British; the Indians could only act as Munsiffs to decide civil cases up to Rs 50 and as law officers to expound the principles of Hindu and Muslim laws. It should be noted here that even this concession was made because there were not many Company’s servants who could be appointed to these positions.
Discrimination in Salary
Not only in the occupying of posts, but also in the payment of salaries, the Indians were always discriminated against. In 1797 when Lord Cornwallis enhanced the remuneration of the British officials no such benefit was conferred on Indian officials[iii].
Other privileges enjoyed by the British subjects
Matters above Rs 500 can only be filed in Supreme Court: In 1793, Lord Cornwallis prohibits the British subjects from presiding beyond 10 miles of Calcutta unless they executed a bond placing themselves under the jurisdiction of the Diwani Adalats in cases up to Rs 500.
However, in matters beyond that amount, they were subject only to the jurisdiction of the Supreme Court of Calcutta. This privilege was not available to Indians.
This privilege was basically given to the British subjects to help them avoid legal problems because for an ordinary Indian, it was almost impossible to go to Supreme Court as it involved hefty expenses and if an Indian tried to sue him in Supreme Court, his expenses in reality overwhelmed the relief granted.
Thus, usually Indians avoid going to Supreme Court and that’s the reason this privilege was given to the British subjects.
An appeal can only be made in Crowns Court:
The British subjects enjoyed the privilege in the purview of appeal also. When the Charter Act of 1813[iv] tried to reform the situation and provided that the British subjects residing, trading or holding immovable property beyond 10 miles from the Presidency limits could be sued in Company’s civil courts of the place it was affirmed that the appeal against such decision could only be filed in the Crown courts.
The Sadar Diwani Adalats where the native’s appeal was filed was not competent to hear their appeals. It was a privilege given to the British-born subjects in which they appeared as defendants. It was intriguing that a court that is considered efficient to handle the cases of the governed is considered not good enough in handling cases of those who govern.
Could not be sued in Moffusil Adalat:
In 1814, Lord Hastings made certain reforms in the civil judicature of Bengal, it was announced that the cases in which a European, an American or a British was a party could not be tried in Munsiffs’ and Sadar Ameens’ courts which means that they could not be sued in a Moffusil Adalat below the rank of the district court which was usually presided by an English judge.
This privilege was given to them solely on a racial basis. Indians were never awarded such kind of privileges and there is no concrete reasoning given by the British government for these privileges which were unfairly given to the British-born subjects.
In 1827, the situation again took a peculiar twirl. The courts of Sadar Ameens were permitted to hear the cases in which a European, an American or a British was a party. But in 1831, Lord Bentinck reversed the position prohibiting the jurisdiction of courts with Indian judges over such persons thus again restoring the privilege.
Specific Reservation in favour of British Subjects:
The Charter Act of 1833[v] unsealed the doors of British subjects. They got the right to live in India and to acquire property. This worsened the situation for Indians.
A large number of British people were now coming to India and Started misbehaving and exploiting them because they know that they can be heard by the bench which is presided by Englishmen. The British government did not stop here.
The Charter Act of 1833 made a specific provision in favour of British subjects by incorporating Section 46, according to which, the government of India could not make a law, without the previous sanctions of the Directors, empowering any courts, other than the Supreme Court to sentence British subjects or their children to death, or abolishing the courts so chartered.
Steps Taken to Remove Racial Discrimination in Administration of Civil Justice
Macaulay, the first law member of the government of India, was of the opinion that the system should be uniform as far as possible and that no distinction ought to be made between one class of people and another, except in cases where it could be clearly made out that such a distinction was necessary for pure ad efficient administration of justice.
His view was that the English and the natives be put exactly on the same basis in all civil proceedings and that they are amenable to all courts of the company except those of the Munsiffs. Thus, in 1833 he also suggested abolition of privileges that the British residents in the Moffusil by which they could go in appeal from the Company’s courts directly to the Supreme Court instead of the Sadar Adalat and said “To give to every defendant in every civil case a right to bring the native plaintiff before the Supreme Court is to give every dishonest Englishmen immunity against almost all civil prosecution”.
The Supreme Court was an extremely expensive court and it’s extremely inconvenient for an Indian to file a suit there.
As a result of this criticism, a number of reforms are made to the justice delivery system more efficient and bias free. Some of the prominent changes are as follows:
- Regulation III of 1833[vi]
Regulation III of 1833 extended the jurisdiction of the registers, Sadar Ameens and Munsiffs to Rs 3000, 2500 and 1000. Further Act V of 1835 abrogated the system of payment of Munsiffs through court fees and made provision of giving them fixed monthly salary.
- Act XI of 1836
In 1836, the Legislative Council of India passed Act XI of 1836. Section 107 of the Act abolished the privileges enjoyed by the British subjects i.e., right of appeal from Company’s Courts to His Majesty’s Courts under the Charter Act of 1813.
In addition, it extended the jurisdiction of all the courts and affirmed that no person, by reason of birth, or descent, should be exempt in any civil proceedings from the jurisdiction of the company’s courts above the Munsiffs in Bengal Sadar Ameens and district Munsiffs in Madras. Now all civil courts except that of Munsiffs in Bengal and Sadar Ameens and District Munsiffs in Madras can hear all cases without any distinction of birth or descent.
- Act III of 1839
Act III of 1839 remove the racial discrimination faced by Indians in adjudication in purview of revenue related matters. This Act declared that no person whatever would, by reason of place of birth or of descent, be exempt from the jurisdiction of the revenue courts or of the Munsiffs in any proceedings whatever connected with arrears or extraction of rent[vii].
- Act VI of 1843
Act VI of 1843 abolished the privileges enjoyed by the British in civil matters. As per the act, the Englishmen were made amenable to the Munsiffs court also, and thus all civil court in Bengal came to possess jurisdiction on every person irrespective of caste, creed or descent. Consequently, Madras Act III of 1850 enacted a similar provision as in Bengal and in all civil cases.
The only exception thus left in civil matters is the courts of Munsiffs in Bengal and Sadar Ameens and the District Munsiffs in Madras. However, in 1843 and 1850 they were abolished. With this the racial discrimination faced by Indians in civil matters finally came to an end in British India in 1850.
Racial Discrimination in Administration of Criminal Justice
Talking about the discrimination faced by Indian in administration of criminal justice system, the plight of Indians was more severe and the progress was made very slow. Akin to the discrimination faced in terms of salary, appointments and jurisdiction in civil system in criminal system also such discrimination is there.
Under the scheme of 1790, the magistrates and the Judges of the court of circuit were all Englishmen. While the progressive Indians came to be associated more and more in the area of civil justice, they continued to play only a very minor role in the area of criminal justice. Extremely limited judicial powers were conferred on some Indian officials to try minor cases.
Englishmen continued to enjoy a privileged position of being exempt from the jurisdiction of the company’s courts.
After the Regulating Act was passed in 1773, the British subjects in Bengal, Bihar and Orissa were within the criminal jurisdiction of Supreme Court at Calcutta only. The courts in Moffusil had no jurisdiction over them. Thus, British enjoyed committing offences as they knew that an ordinary Indian could not afford to sue him in Supreme Court as it involves hefty expenses. Moreover, the judges there are also Englishmen and they thus always have a bias attitude towards the Indians.
However, in 1790, the government acted to remove the decimation. The magistrates were authorised to send British subjects to Supreme Court for trial if they found any prima facie case against them on enquiry by Lord Cornwallis. As said, the government only acted but did not really intend to end this discrimination. That’s the reason that the magistrate was not given the power to punish them by himself. He merely had a police function to discharge.
Thus, the situation didn’t improve although the local magistrate had the power of sending them there for trial, yet to impose upon the native complainant and witnesses the obligation of travelling many hundred miles to obtain redress was subject them to delay, fatigue and expense which would be Intolerable than the injuries they had suffered.
It was necessary to send a British offender to the Presidency town along with all witnesses before he could be tried. There was no redress for wrong committed by the British, for the poor people were hardly in position to prosecute them in the Supreme Court many miles away from their homes. In reality British government did not want their subjects to be saddled with any legal obligation[viii].
It was an invidious distinction to have one type of tribunals for the governors and another for the governed. It was unjust to give to the Englishmen a right of free access to the interior, but exempt them from the jurisdiction of the local courts, which were always open to them against the Indian people.
Justices of Peace: An attempt to fool Indians
In 1793, the British parliament authorised the Governor General in Council to appoint a Justice of Peace, and gave them the power to apprehend British criminals, take evidence against them, and appear for trial with them before the Supreme Court at Calcutta to strengthen the judicial control over the British[ix]. Under the authority of this provision, by Regulation Act of 1796, all Magistrates were appointed as Justices of Peace in Bombay and Madras in 1807.
It was a step taken to fool Indians as the discontent is burgeoning among Indians because of the difficulties faced by them due to the privileges enjoyed by the British subjects. Thus, the British government tried to show that they were trying to solve their problems and working for their welfare[x].
But still the British government had a discriminatory attitude towards Indians. That’s the reason that only the covenanted servants of the company or other British inhabitants were allowed to be appointed as Justices of Peace. No Indian was allowed to be appointed as Justices of Peace. Thus, Indians were discriminated again and it reflects the mindset of British that they always considered Indians inferior and incapable of holding decent positions.
Also, as we discussed that it’s only an action to fool Indians, the government didn’t solve the root problem. The Justices of Peace were also not given the absolute authority. They were just there to apprehend the British criminals, take evidence against them and commit them for trial to Supreme Court. Thus, in reality nothing changed. Also, another provision i.e. section 153 was added to ensure that no difficulty is faced by the British subjects.
According to section 153 of the Charter Act of 1793[xi], all the proceedings, judgements or orders of the justices of the peace could be removed by writ of certiorari into the court of Oyer and terminer and gaol of delivery of the concerned presidency. Thus, those who have money and good relations with the upper-class officials often escape the system.
But the British government forgot that “Ignorance today brings the Darkness tomorrow”. By ignoring the problem, you can’t escape its consequences. The curtain of being good and welfare government soon disappeared. Indians began to understand all the propaganda and the situation became rampant.
To control the situation, the Charter Act of 1813[xii] was passed. It authorised the Magistrate of the district to act as justice of peace and to punish the offenders of British origin in cases involving assault, forced entry or other injury accompanied with force with a fine not exceeding Rs 500 and failing the payment of fine with two months imprisonment. Thus, British subjects can now be tried by the magistrate in some specific offences.
However, the British still haven’t gave up their discriminatory attitude and thus to give the British subjects a cushion enacted a provision according to which such convictions given by the magistrate still could be removed by the courts of Oyer and Terminer and Goal Delivery by a writ of Certiorari. Thus, British subjects continue to enjoy privilege.
In 1832, it was thought that people besides the Company’s covenants servants or the British inhabitants, should be capable of being appointed as Justices of Peace. Therefore, provision was made to appoint an Indian as Justice of Peace. But do you really think that British would really treat Indians as equal to them. No, while making a provision for appointing Indians as Justices of Peace, it was enacted that they could be appointed only within the Presidency towns, outside the Presidency town, only the company’s covenants or the British inhabitants can be appointed.
The system was changed much later in 1923 when the provision for appointing them outside the Presidency town was made.
Act IV of 1843: A Progressive Step
In 1843, the Indian Legislative Council Act abolished the privilege of removing by a writ of Certiorari to the Supreme Court, in the convictions of the British subjects by the Justices of Peace in Moffusil, and provided that an appeal would lie against such convictions to the same courts and according to the same rules as provided in the case of convictions made by magistrates in the exercise of their ordinary jurisdiction.
But here also, the discrimination didn’t end. The Englishmen continued to enjoy certain privileges. Even for the minor offences, they could only be tried by justices of the peace who had to be either Englishmen or company’s covenant servant. Also, as regard to serious offences, they still enjoyed the privilege of tried only by the Crowns Court. No such provision was there for Indians.
Criminal Procedure e Code, 1872
In 1872, the Code of Criminal Procedure was revised but the disparities or discrimination was still there as only the courts presided by a British judge could try British criminals and that also in minor offences involving punishment up to 1 year or fine or both[xiii]. The graver offences could only be heard by the High courts. This discrimination brought a kind of inferiority complex in Indian Judges. They started feeling that they were considered lesser than and subordinate to their British colleagues.
Move towards Discrimination Free Society
In 1882, Lord Ripon was appointed as Governor General of India. He proposed a reform by which all district magistrates and session judges were to be entitled to try British Europeans. Further, it was proposed to empower the Local Governments “to confer these powers outside the Presidency Towns upon those members of (a) the covenanted civil service (b) national civil service (c) the non regulation commission who were already exercising first class magistrate powers and were fit to be entrusted with these further powers[xiv].
In purview of this, numbers of steps were taken to create a racial discrimination free society. Some of them are:
Ilbert Act, 1884
In 1884, the government took a major step in the form of Ilbert Act. The Ilbert Act of 1884 made session judges and district magistrates as justices of peace and provided a mixed jury which consisted of Indians and Europeans or Americans. The trial of the British subjects was to be heard by this jury. Later, in 1923 Criminal Procedure (Amendment) Act was passed which made all the persons subject to the same jurisdiction of the same courts and abolished all disparities.
Criminal Procedure Amendment Act, 1923
The Criminal Procedure Amendment Act, 1923 also had a huge role in removing the racial discrimination against Indians. It made all the persons subject to the same jurisdiction of the same courts and abolished all disparities.
The Europeans British subjects’ right to be tried by European Judges and magistrates was entirely abrogated. The accused persons whether European or Indian were placed practically on equal footing. The only privilege allowed to British subjects was that they could be tried only with the help of a jury consisting of a majority of Europeans and Americans[xv]. But the same privilege was there for Indians also. So, there was no discrimination.
Criminal Law (Removal of Racial Discriminations) Act 1949
With the independence of India, the last vestiges of racial discrimination in the field of criminal procedure in favour of Europeans and Americans were abolished by the Indian parliament by passing the Criminal Law (Removal of Racial Discriminations) Act 1949[xvi].
Since the beginning of the British rule, Indians were always discriminated juxtapose to British subjects. Whether we talk about appointment of Indians in administration of criminal and civil justice, their salary or the laws and jurisdiction which they were subject to, we find that British subjects always enjoyed some unfair privileges over Indians.
While British judges were paid high salaries, Indian officials were even not recruited as regular salaried employee. Also, the British always had a kind of superior attitude. At first, they could be tried only by the Supreme Court and the Crowns Court whereas Indians were triable by the Company’s court.
Later also when some reforms were made and British were made amenable to company’s court still the British were given the privileges in terms of appeal. Also, British always regard Indian as incompetent to be appointed at decent position and considered them as untrustable.
That’s why in the beginning the highest position that an Indian could occupy was of Munsiff. When Charter Act of1833 unsealed the doors of British subjects and when they got a right to live in India and to acquire property and when a large number of British people started misbehaving and exploiting them British enacted section 46, according to which, the government of India could not make a law, without the previous sanctions of the Directors, empowering any courts, other than the Supreme Court to sentence British subjects or their children to death, or abolishing the courts so chartered to protect them.
This truly denotes their discriminatory attitude towards Indians. They considered Indians inferior to them in all aspects.
Later, the position was changed but not the British’s attitude towards Indians. They still considered them incompetent and not good enough to hear important matters and to punish them. That’s why for a very long time the British followed a rudimentary policy that a British subject could not be tried by an Indian judge.
Meanwhile the Britishers continue fooling Indians by pretending to work for their welfare and abolishing racial discrimination but whenever a step was taken in this regard, a loophole or we can say a privilege was left behind for the British subjects so that they could avoid the liability.
[ii] 13 Geo. 3 c. 63
[iii] MP Jain Outlines of Indian Legal And Constitutional History (Lexis Nexis, Haryana 7th Edition, 2014)
[iv] 53 Geo. 3 c. 155
[v] 3&4 Will 4 c 85
[vii] MP Singh Outlines of Indian Legal And Constitutional History (Lexis Nexis, Haryana 8th Edition, 2015)
[viii] Supra note 3
[ix] 33 Geo III C. 52
[x] Supra Note 7
[xii] 53 Geo III C. 155
[xiii] The Code of Criminal Procedure, 1973
[xiv] Supra note 3
[xv] Section 275 of the Criminal Procedure Code
[xvi] Act XVII of 1949
This article has been written by Anubhav Sharma.
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