Mayors court

Mayors court( 1726)

• The Charter of 1726 issued by King George I.
• The charter established civil and criminal courts in the presidency towns which derived their authority not from the company but from the British crown.
• The advantage of having royal courts in India was that their decisions were as authoritative as those of the courts in England.
• The charter initiated the system of appeals from the courts in India to the Privy Council in England.
• Thus, the English law was brought in to India.Principles of English law was brought to decide the disputes.
• Codification of Indian law was initiated in 1833.
• The charter also established a local legislature in each presidency town.
• The Charter of 1726 constitutes a landmark in the Indian Legal history.
• But justice continued to be administered by non professional judges, no separation of power between the executive and the judiciary.
• Position of courts before 1726 and after.The decision of the Mayors court commanded respect in England as it was created by the Crown.It was not so in case of earlier court which was created by the company.

Provisions of the charter

• All the three presidency was to to have a corporation comprising of one mayor and 9 alderman.
• Out of the 9 alderman,two could be a subject of any prince or state having good relation with the Great Britain.Rest were to be British natural born subjects.
• Mayor was appointed for 1 year and after the expiry of term had to continue as an alderman.
• Alderman was appointed for life and in case of any vacancy the mayor and the remaining alderman would elect new alderman from inhabitants of the town.
• New mayor was to be elected by outgoing mayor and the alderman.
• An alderman could be removed on some reasonable ground by the governor and council subject to an appeal to King in council.

Thus, the attempt was to make the corporation autonomous, free from the control of the executive.

Judicial structure and composition in each presidency(civil jurisdiction)

• The mayor and the aldermen were to constitute the mayors court.
• The quoram of the court was to be three-the mayor or senior alderman with two other aldermen.
• The court was to hear and try all civil suits arising within the town and its subordinate factories.
• The first appeal within 14 days would go to governor and council.From where, further appeal lay with the King in council in all matters involving 1000 pagodas or more( then currency of Madras)
• Thus,for the first time,a right of appeal to the king-in-council from the decisions of the courts in India was graned.
• It was a court of record and had power to punish for contempt.
• Had testamentary jurisdiction, could grant probates of wills of the deceased persons.
• A sheriff was chosen annually by governor and council and functioned as police.
• The form of procedure in civil action was interesting.Court might issue warrant,bail might be allowed,defendant could be detained in custody,he could be imprisoned till the judgement was satisfied,property could be seized and sold.

Criminal Jurisdiction

• Vested in the governor and five senior member of the council.
• They were known as justices of peace.
• Arrest persons,punish.
• Three justices of the peace were to collectively form a court of record.
• Session was held four times a year to try and punish each and everycriminal offence except high treason.
• Trials were held with the help of grand jury and petty jury.
• All technical forms and procedures of the English criminal justice system was introduced.

Important points

-Seperation of power between the executive and judiciary was partially followed.
-Executive enjoyed a large share in the administration of justice as a criminal court and appellate court from the mayors court.
-Aldermen were either company’s servants or other English traders.
-justice administered by non professional judges.

Working of the judicial system:1726-1754

-Volume of litigation increased in each presidency town.
-Hostility and conflict between the government and mayors court.
-Too much interference by the government.
-Disagreed on the caste and religious matters of the natives.Govt.warned the court not to interfere in such matters.
-Dispute on the question of form of oath.Hindus to be sworn upon the cow instead of the Geeta.
-The governor and council usually reversed the decision of the court.
-Working of the mayors court also generated resentment amongst the Indians.The govt. usually sided with them.

Sources of law

1) Constitution- It is the ultimate source of law.Its authority lies in the political fact that it has been so accepted by the people.Constitution differs from other legislations.It may be the fundamental law of the land or it may simply be a political document.Its provisions lay down binding rules violation of which can be checked and remedied through court action.In countries like former USSR and China it simply lay down the rules for the guidance of the governance and its violation can be checked only at the political level.
2) Legislation-Most Important and biggest source of law.Legislation is divided into Supreme and Subordinate ( delegated legislation).
Supreme legislation derives its power directly from the Constitution.Delegated Legislation proceeds from an authority which derives its power from the supreme legislation.Egs of the former kind are Acts of parliament,ordinances and law made by the president and the governor.Laws made by various authorities like corporations,municipalities,universities,government department under the authority of the supreme legislation are subordinate legislation.
One limitation being that supreme legislation cannot delegate the “essential legislative functions” to any other body.Also,it cannot delegate its legislative functions to an unlimited extent.

3) Precedent- It constitutes a very important source of law.It means the use of past decisions as guides in the moulding of future decisions. Salmond ,”the making of law by the recognition and application of new rules by the courts themselves in ,,the administration of justice”.Legislation vs precedent , Legislation is a formal declaration of law in abstract while in precedent law is created by its application to a specific situation.Legislation is of general character and does not take into account the facts of any particular situation.Application of certain principles to specific fact situation is typical of precedent.Legislation is generally made for future tranactions.precedent is created with respect to past transactions and operates retrospectively.Law of torts, a creation of judges through their decisions.
However, finding law out of the long pronouncements of a judge is a very difficult process.What part of the judicial opinion or opinions constitute the precedent or makes law?salmond ,” A precedent is a judicial decision which contains in itself a principle.The underlying principle which thus forms its authoritative element is often termed the ratio decidendi.The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.”It lays down a principle of general application not confined to the fact of a particular case constitute the precedent or ratio decidendi.obiter dicta, things said by the way without being relevant for the decision of the case where in they have been said.Courts conclusions on the material facts constitutes the ratio or the precedent and the rest is simply obiter.The ratio or the precedent is not set and known just by one decision or case but by a series of them.
For a successful operation of the doctrine of precedent as a source of law it is absolutely necessary that there should be a hierarchy of courts and a proper reporting of their decisions.article 141 law laid down by the Supreme Court is binding upon all the courts in India.The Supreme court is not bound by its own decisions,or any other court,privy council or federal court.
All the high courts are bound by the decisions of the Supreme Courts as well as decisions of the privy council and the federal courts but they are not bound by its own decisions or a decision of another high court.
District or lower courts are bound by the precedent laid down by the supreme court or past decisions of the privy council and the federal court or the high court to which they are subordinate.Among the lower courts there is no system of precedents because their decisions are not published so not easily accessible.Supreme Court decisions are published in Supreme court reports,All India reports,supreme court journal,supreme court cases etc.High court decisions are published in the official Indian law reports series of each high court,all India reporter.

Legislation v. precedent
• Legislation generally has prospective effect,makes law for the future.Precedent makes law for the past transactions and applies it retrospectively.
• Legislation is more coherent and it is easier to get the law as compared to the difficulty in finding the precedent.
• Legislation is more certain than a precedent .
• Legislation is more easily accessible than the precedent .
• Legislation is rigid.It disregards need of individual justice.precedent has more justice content.
Custom
• Most ancient source of law.Though its importance is now diminishing with the growth of legislation and precedent.
• Custom means uniformity of conduct of people under like circumstances.
• You cannot have successful laws which are not part of the habits of the people.
• Multiplicity of customary law creates problem.
To acuire the force of law, custom must fulfil the following Conditions-
• Antiquity
• Reasonableness
• Conformity with statutory law
• Observance as of right
• Consistent with morality and public policy.

Distinction of law with other concepts

1) Law and Morality-

• Law generally approves or reinforces morality in society.
• Morals are socially accepted set of conduct, belief,attitudes in a given community.
• Morals and law have common origin in an undifferentiated mixture of customs
• However, morals are not law in strict sense.
• Laws are formulated and enforced by the state.on the other hand,Morals by conscience, beliefs,faith or attitudes of society.
• Law has fixed powerful sanctions.The sanctions behind morals are strong public opinion and ridicule.
• Law and morality overlap each other.Hence, no clear distinction can be drawn between the two.
• Positive law cannot ignore morals.As law devoid of morals will not be approved by the people.

2) Law and Custom-

• Custom is to society what law is to the states( Salmond)
• Custom resides in habitual practice and usages.
• Custom is an important historical source of law.
• Custom is described as the twilight of law
• Common law of England is nothing but long standing customs.

To acquire force of law, Custom must fulfil the following conditions-
• Antiquity
• Reasonableness
• Conformity with statutory law
• Observation as a right.
• Consistency with morality and public policy.

France,Germany and Scandinavia countries regard custom as a material source of law.Custom in some systems is a valid source of legal rules.An accepted or proven custom of trade may be an implied term of contract.

Similarity: Both carry sanctions.Disobedience to law is met with strict legal sanctions.Violation of custom will be ridiculed, followed by an adverse public opinion.
Distinctions-
• Custom states what is normally, even invariably, done and does not deal with what should be done and must be done subject to some sanction.
• Custom may be flouted or disobeyed more often than law as it is not backed by legal sanctions.
• Custom may change,even quite rapidly or remain unchanged for long.On the other hand law may change, but not so easily as custom may.
• Custom is a product of public opinion while law is a good deal more than that i.e. recognition and enforcement by the state.


3)Law and Equity-

• Equity primarily is fairness or natural justice.It is not same as ethics or morality but has some connections with it.
• Concept of Equity originated in England and existed side by side with common law.
• The Supreme Court has both these types of jurisdiction.Law and Equity in India always treated as a part of the system.
• English common law principles was liberalized by Equity in the form of principles of “justice,equity and good conscience”.
• Equity thus softens the rigour of the law.It is the lifeblood of law.

4) Law and Public opinion-

• Public opinion is the whole body of individual opinions, views,attitudes and opinions on certain issues held and expressed by a substantial proportion of a community.
• It is not necessarily a majority opinion.
• It is a powerful instrument for the rulers and the ruled alike.
• Public opinion moulds the law and the law also affects the public opinion.
• Educated public opinion is far more valuable than that of the ignorant masses.
• Public opinion,therefore,affects law making, law reform and public policy.

Various schools of law

A. Positivistic school of law( Austin)

This school regards law as the command of the sovereign.”law is the aggregate of rule set by men as politically superior,or sovereign, to men as politically subject”.
Gist of the theory-
a) Law is the command of the sovereign i.e state
b) Which has to be obeyed or
c) If not obeyed,you will be visited with sanctions

This school is not concerned with the goodness or badness of law.It studies only the law as it is given to the people by the state.Therefore,it has got the name of positive school.It doesnot consider custom as a valid source of law.In the same way,international law and morality is not treated law by them.They emphasise that people obey law only because of the fear of sanction and nothing else.Three main elements of law are- Command+duty+sanction.And only State is the ultimate source of all law.

Criticisms- 1) Law is not merely a set of commands,it confers certain privileges also.
2)People do not obey law because of fear of sanction only,there are many other motives for obeying the law.
3) Custom is recognized as a historical source of law in many legal systems.
4) International law is law in every sense.Eg, UNO

B. Natural Law School-

Very old school of law.Expounded by Greek thinkers.Mainly metaphysical speculations on justice.It denotes belief in a system of right or justice common to all men prescribed by the supreme controlling force in the universe.Those rules and principles which are considered to have emanated from some supreme source as God or divine power.Law is in the nature and it is a product of human reason.This school is also called Divine law school,moral law,universal law and so on.
For them the ultimate source of law was not the state or any sovereign entity but law was created by the supreme force and expounded by human reason.The end of law was Justice for all.Hence, they mixed law with justice and morality.

C.Historical School of law-( Savigny)

Law is not made but found.Custom is law.It is the typical law and is enforced by the King who himself is bound by it.Law has nothing to do with political power.It is the product of national consciousness.In other words law comes from the people.Law rests on social pressure and is therefore a product of society.

D.The Realist School-

It observes the making and working of law in society.It studies law as it is.Primarily focuses on the decisions of judge in a case.Decisions given by a judge are influenced by “human factor” and this is the field of its study.Law is a means to social ends, but must be evaluated in terms of its effects.It studies what law is and what it ought to be.Its emphasis lie on the creative role of judge. This school had its birth in USA.


E. Kelson’s pure theory of law-

It was a refinement on Austin’s theory.His aim was to free law from metaphysical mist found in the doctrine of natural law.Therefore,this school is also called pure theory of law which will be uncontaminated by history,ethics,politics,sociology and other external factors.
In Short- law are normative in nature.They are ought norms.It deals with what ought to be done or ought not to be done.
Law is not a kin to natural science.It is not descriptive.Law does not say what actually takes place, it only prescribes certain rules according to which certain conduct ought to be punished.
Law consists of hierarchy of norms.On the top lie the grundnorm which gives validity to the other inferior norms.Such as the crown in parliament in England is the Grundnorm and Constitution of USA and India is the Grundnorm.All the other norms get its validity from the Grundnorm,whereas the validity of the Grundnorm lies in the political history of a country.Grundnorms validity is unquestionable.It is accepted so by the people.


F.Sociological school- ( Roscoe Pound)

Main focus of its study are individual and the State,individual and society,society and the state,law and individual and their interdependence and relationship.
According to this school,law is an instrument of social engineering.All the limbs of law are important.It primarily studies the working of law in society rather than its form or content.The end of law is to attain maximum happiness for the maximum number of people by resolving various conflicting interests in the society by the tool of Social Engineering.

Concept of law

A.Concept of law

1) What is Law?

2) Characteristics of Law.

3) Various Schools of Law.
a) positivistic school of law( Austin and Kelsen)
b) Natural school of law( Oldest school)
c) Historical school of law.( Savigny)
d) Sociological school of law.( Roscoe Pound)
e) Realist School of Law.

Crucial Points:

1) What is law? A difficult question to answer.

2) Different perspectives and views.

3) Absence of universal definition of law which is comprehensive.

4) Law is not a physical object to be defined easily, it is organic and grows with the demands of society.

5) Critically analyse the various definition of law by the above schools of law.

6) Characteristics of law.
a) law is an attribute of human beings living in a political society for governing themselves.
b) Law is normative in nature, it deals with “ought” proposition stating what a man should or must do in particular circumstances, and with what is to happen if he deviates beyond the permitted limit of conduct.
c) It regulates human relations in the society.

7)See the various conceptions of law.

8) Define law in your own way by incorporating all the essential characteristics of law.

9) A definition of law should have two aims- firstly, to make precise the meaning of law and secondly, to give a true picture of laws and its operation.

10) Law has two sides- from one side it is an abstract body of rules,from the other it is a social process for compromising the conflicting interests of men.

B.law and morality

C. law and custom

D.law and equity

E.law and public opinion

2. Sources of law-
a) Constitution
b) legislation
c) precedent
d)custom
e)expert opinion and juristic writings.

Course Syllabi of Indian Legal System

1) Concept of law
2) Sources of law
3) Mayor’s Courts(1726)
4) The Supreme Court at Calcutta
5) The High Courts

-History of Writ Jurisdiction ( From the time of the Supreme Court of Calcutta up to the adoption of the Constitution)

6) Growth of legal Profession
7) Nyaya Panchayats
8) The Rule Of Law

Constitutional History-
9) Government of India Act 1919
10) Government of India Act,1935


Recommended text books-Outlines of Indian Legal History,. MP Jain ; Outlines of Indian legal and Constitutional History,MP Singh; Landmarks in Indian legal and Constitutional History, VD Kulshreshtha’s; Jurisprudence, Legal Theory by Dr. BN Mani Tripathi

Time Table for Ist term LL.B (ILS) F section

Wednesday: 7.00-8.30pm (2 lectures')
Friday:6.15-7.00pm

Time Table for Ist term LL.B (ILS) D section

Wednesday: 3.00-3.45pm
Saturday: 3.45-5.15pm (2 lectures')

Lecture class:

Lecture Class on the Indian Legal System for Ist term LL.B students will start on (wednesday) 9th August 2006. Schedule and lecture notes will be posted on this course blog. If you are attending this course, please send an email with your roll number and your full name to my mail id topi@topibasar.in .