JUDICIAL SCHEME OF 1793 OF LORD CORNWALLIS
Lord Cornwallis succeeded Warren Hastings as Governor-General in 1786. Lord Cornwallis reached India in 1786 and stayed here till 1793. During his tenure of office as Governor General, the judicial system in the province of Bengal, Bihar and Orissa was re-organized on a completely new basis. He was the first to put into practice the important principles of “Rule of Law” and administration according to law. The governor generalship of Cornwallis constitutes a very remarkable and a highly constructive period in the history of the Indian Legal Institution. He organized the entire revenue and judicial administration in three distinct phases through his Judicial Plan of 1787, 1790 and 1793.
CONDITIONS LAYS DOWN BY LORD CORNWALLIS
- That he would also be appointed as the commander-in-chief: and
- That Governor-General would be empowered to over-rule the decisions of his Council whenever it was deemed necessary.
The Court of Directors of the Company accepted these conditions and sent Lord Cornwallis as Governor-General to carry out the object od the Parliament which aimed at securing the happiness of the native population. There was yet another reason for arming the Governor-General with more powers than given under the Act of 1786. The multiplicity of courts in the territories of Bengal, Bihar and Orissa had added to the burden of expenditure of the Company. Therefore, the Court of Directors of the Company, on April 12, 1787 sent Lord Cornwallis with instructions to reduce the expenditure by combining revenue and judicial decisions.
JUDICIAL PLAN OF 1793
NEED FOR JUDICIAL PLAN OF 1793
- The main purpose of the Judicial Plan of 1793 was to remove the defects existing in the administration of civil justice which had suffered a major set back due to over-centralisation of powers in a single authority of the Collector in each district.
- Due to fusion of judicial and revenue administration there were chances of miscarriage of justice and abuse of power. Experience had shown that Collectors always give priority to revenue collection and ignore administration of civil justice. This attitude of Collectors adversely affected the efficiency of judicial administration.
REASONS FOR IGNORANCE OF CIVIL ADMINISTARTION BY COLLECTORS
There was a specific reason for the Collectors to give more priority to revenue collection, as they were to get an extra commission on the amount of revenue collected by them. So, they gave priority to revenue collection as they could be personally benefit from it and by delivering civil justice, they could only lay off their duty towards company.
PLAN OF 1793
In order to remove the shortcomings of the scheme of 1787, Lord Cornwallis brought about vital changes in the administration of civil justice through his Judicial Plan of 1793. A code called the ‘Cornwallis Code’ consisting of 48 Regulations was introduced by him. The reforms were introduced to ensure the separation of powers from the judiciary and also to retain judicial control on the executive actions of the Government. The provision of the Cornwallis Code may be briefly be discussed under the following heads:
(a)- Separation of civil and revenue jurisdiction
- Under the Judicial plan of 1793, the Collector was only to collect the revenue and his power to decide revenue and civil cases was withdrawn and transferred to the Mofussil Diwani Adalat.
- The Collector was now to collect revenue under the supervision of the Board of Revenue which was controlled by Governor-general and Council at Calcutta.
- The civil as well as revenue cases were now to be tried by Mofussil Diwani Adalat.
(b)- Reorganization of Diwani Adalat
- Reorganization of civil courts were done under the Regulation III of Cornwallis Act so as to make them more independent and efficient.
- A Mofussil Diwani Adalat was established in each district of Bengal, Bihar and Orissa and a civil servant of the Company was appointed in the Diwani Adalat in place of Collector. The English Judge appointed in the Diwani Adalat was to take a prescribed oath. The court was to be held in open and the Judges was assisted by the Hindu and Mohammedan native law officers. This Adalat was to revenue and civil cases.
- In revenue cases, an appeal from the Mofussil Diwani Adalat lay to the Board of Revenue and a further appeal from the decisions of the Board of Revenue could be preferred to the Governor-General and Council at Calcutta. In civil matters, an appeal from the decision of the Mofussil Adalat lay to the Provincial court of appeal in all cases irrespective of their monetary value.
- The Diwani Adalat was not to interfere in criminal adjudication. It was to apply personal laws of the natives in deciding cases relating to marriage, inheritance, etc. and cases wherein no specific law could be applied, were to be decided according to the principles of equity, justice and good principle.
- The Act can also try civil cases of European, British subjects residing beyond ten miles radius from Calcutta
- A notable feature of the Judicial Plan of 1793 was that it made a provision enabling the people to institute suits against the government in the Diwani Adalat in case they felt aggrieved or injured by any action of the Government.
(c)-Appeals from Diwani Adalat
- An appeal in all civil cases, irrespective of the value of the subject matter, could be preferred to the Provincial Court of Appeal which was created in each of the four divisions of Bengal, Bihar and Orissa namely Patna, Calcutta, Dacca and Murshidabad.
- This court consisted of three English judges of the company and it was an appellate court for the division.
- The court also decide cases sent to it by Sadar Diwani Adalat or the Company’s Government.
- It also had jurisdiction to entertain civil cases within the division and could hear cases of corruption against the judges of Mofussil Diwani Adalat and forward them to Sadar Diwani Adalat. In case the charges against the Judge were proved, he could be removed from office or suspended by the Governor-General and Council.
- The decision of the Provincial Court of Appeal in case up to rupees 1,000 was final and if the value exceeded this amount, a further appeal lay to the Sadar Diwani Adalat which consisted of the Governor-General and the members of his Council. If the subject matter of the suit exceeded 5000 euro an appeal from the Sadar Diwani Adalat could be allowed to the King-in-Council.
(d)- Creation of subordinate civil courts
A number of subordinate courts were created by Regulation IX of the Cornwallis Code with a view to ensuring administration of civil justice to native interior parts of the district
(i)- Munsif’s Court
- In each district, Sadar Amins and Commissioners who were subsequently called the Munsif’s were appointed to decide cases up to Rupees 50.
- The appointment of Munsif’s was made from amongst the landlords, farmers and tehsildars etc. They were appointed by the Mofussil Diwani Adalat with the approval of the Sadar Diwani Adalat. Indians could be also appointed as Munsif’s.
- They were honorary judges without any paid salary but received commission for their work.
- An appeal from the decision of Munsif lay to the Mofussil Diwani Adalat and a second appeal could be preferred to the Provincial Court of Appeal of the division.
(ii)- Registrar’s Court.
- The Mofussil Diwani Adalat could authorize the Registrar’s court to decide cases up to Rupees 200.
- Only a Covenanted servant English Servant of the Company could be appointed as a Registrar.
- An appeal from the Registrar had to be countersigned by the Judge of Mofussil Diwani Adalat and a second appeal to the provincial court of the division.
(e)- Abolition of court fees
Another significant change introduced by Lord Cornwallis though his Judicial Plan of 1793 was the abolition of court-fees. The litigants were not required to pay any fees excepting the pleaders fees and actual charges incurred on summoning the witness.
(f)- Administration of Criminal Justice
- The Collectors who also acted as magistrate under the scheme of 1790 were deprived of their magisterial powers.
- The magisterial power of the Collector was transferred to the Judge of Mofussil Diwani Adalat with the same power and function.
- The judge magistrate could decide the petty criminal case which could be punished by imprisonment up to 15 days or fine up to Rupees 100.
- Another change introduced was that the court of circuit created in 1790 and Provincial court of appeal proposed in 1793 were merged to create four courts of Appeal and Circuit, one each at Calcutta, Dacca, Patna and Murshidabad.
- The court was to dispose criminal cases in two divisions. The senior most Judge constituted one division while the remaining two judges formed the other divisions and they were to go on the circuit simultaneously. After the completion of the circuit, all the three Judges were to sit together and hear appeals from Mofussil Diwani Adalat.
(g) Native law officers
Regulation XII of the Code provided for the appointment of native law officers, namely Pandits, Kazis and Muftis, in the Appeal and circuit and the court of Mofussil Diwani Adalat. These native law officers were to expound the law and thus played an important role in the administration of justice. They had to take oath of their office and were appointed by the Governor-General and Council for a definite period. They could be removed from the office on the ground of incapacity, misconduct or corruption.
(h) Legal Profession
- In order to ensure efficiency in the administration of justice, Lord Cornwallis organised Legal profession for the benefit of litigants in 1793.
- Consequently, to passing of this regulation, the person who wanted to join legal profession was required to obtain license (Sanad) from the Sadar Diwani Adalat after fulfilling certain conditions.
- He had to take oath for working honestly. The legal practitioner was called Vakil. The Vakil were required to charge moderate fees from the clients as per the schedule of the fees prescribed by the Code and they can be suspended by Sadar Diwani Adalat for professional misconduct or charging more than the prescribed fees.
(i) Making of laws and Regulations
- The old regulations passed by the Government so far lacked uniformity and were issued in loose pamphlets and were also not readily available form.
- To solve this problem, Cornwallis made an attempt to bring about uniformity in the pattern of Regulations. He provided that every Regulation shall contain a preamble stating the reasons and objects for its enactment.
- All Regulations passed in a year were to be printed and bound up in volumes and adequate arrangements were made to supply them to all the courts.
- Each regulation to be divided into sections and sub-sections wherever necessary. The administration of the provinces was carried out in accordance of the Regulation.
(j) Payment settlement of Land Revenue
- Cornwallis persuaded the Directors of the Company for the permanent settlement of land revenues.
- The zamindars were the owners of the land and required to pay 9/10th of the revenue collection to the government.
- This was a right step as it removed uncertainty of zamindars position in relation to their zamindari rights.
(k)Reforms in Police System
- Before the reform police powers were held by landlords and farmers of land.
- This system was abolished and now each district was divided into police jurisdiction of twenty miles each.
- Each area was guarded by a Darogah with an armed Constabulary. The Darogahs were to be appointed by magistrate.
- The cities of Dacca, Patna and Murshidabad were divided into wards, each of which was guarded by a Darogah who was under the control of the Kotwal.
- The Police officials, namely, Darogah and Kotwal were to apprehend the criminals and prevent the incidence of crime and were responsible for maintenance of peace and order within the area under their guard.
APPRAISAL OF THE JUDICIAL PLAN OF 1793
- The Judicial Plan of 1793 separated the civil and revenue jurisdiction which was most criticised before the passing of the Plan.
- Separation of executive from Judiciary was another important feature which helped in establishing the principle of sovereignty of law in British India.
- The abolition of court fees was other remarkable decision as poor litigants were not required to pay any court fees for getting justice.
- The most significant feature of the judicial Plan of 1793 was that it was based on the sound principle of checks and balances by distinctly demarcating of powers, jurisdiction and functions of the different categories of law courts.
Though the Judicial Plan of 1793 introduced by Lord Cornwallis was intended to ensure fairness, impartially and efficiency in the administration of justice, it suffered from certain defects.
- Firstly, too many details about the law and procedure made the system complicated and cumbersome.
- Secondly, Cornwallis did not consider Indians worthy of trust and did not give them a place of administration of justice or the government.
- Thirdly, the plan excluded Indians from the judicial post and appointed English Judges which effected the delay in justice or improper judicial decisions as they could not understand the problems of the native people.
- Fourthly, one of the regulations of Lord Cornwallis provided that all regulations should be properly arranged, numbered, printed and circulated but no attempt was made for the codification of Indian Law.
- Fifthly, the abolition of court fees by Lord Cornwallis, adversely affected the earnings of Company and at the same time resulted into unprecedented increase in the number of cases.
- Sixthly, the Judicial Plan of 1793 provided for the appointment of Munsifs, namely, Commissioners and Ameens for deciding petty criminal cases in the interior region of the district. But these Munsifs were not salaried officers, instead, they were paid nominal commission on the valuation of the case. This led to bribery and corruption, at a large scale in smaller courts.
Although the Judicial Plan of 1793 was appraised and criticised for its various benefits and drawbacks but at the same time it must be accepted that the Cornwallis Code of forty-eight Regulations provided a blueprint for the future structure of judicial and a administrative system in India.
Author: Animesh Nagvanshi,
ICFAI, Dehradun and 3rd Year/ Student