Tuesday, June 21, 2011

Bombay: A Story of Law

The legal history of Bombay can be traced back to when the islands came into British possession upon the marriage of Charles II and Catherine, following which they were leased to the East India Company. The Company set up benches in custom houses to handle rudimentary disputes, but the system was highly flawed.

It was Governor General Gerald Aungier who established the first proper judicial system with George Wilcox as judge of the First British Court of Justice in 1672 with much pomp and glory. Aungier championed the cause of independence of the judiciary, but his successors weren't as far-sighted.

More Sophisticated Systems
The Charter of 1683 led to the establishment of Admiralty Courts under an expert in civil law, but it was still beholden to the Company since all the judges were employees of it. Then, under a Royal Charter in 1726, Mayor's Courts were established. These were to be courts of record with the power to prosecute for contempt. Also, subjects were allowed to appeal to the King-in-Council for the first time.For seventy years, the system continued with the inherent defect that judges were still employees of the Company and were not professionals.

The Charter of 1798 abolished the Mayor's Courts and created the Recorder's Court, consisting of professional recorders and members representing Hindu and Muslim legal experts. For the first time, Indians were allowed to practice in this court. 1798 was truly a hallmark in India's history.

By this time however, other changes were apace. In 1773, Bengal Governor Warren Hastings established the Bengal Supreme Court and in 1823, an Act of British Parliament created a similar system in Bombay. Thus was established the Supreme Court of Bombay. The court worked satisfactorily and applied British Common Law, bringing the system to the subcontinent. Then came the Mutiny of 1857, a year after which the Company's holdings were transferred to the crown.

The Bombay High Court
In 1852, Parliament felt that it would be better to merge the Bombay Supreme Court with other courts, called 'Sadar Adalats.' A similar view was taken for the other Presidencies of Madras and Bengal. Accordingly, the Indian High Courts Act, 1861 created the High Courts of Bombay, Madras and Bengal, all of which were empowered under the Royal Seal of the United Kingdom. Adoption of the Penal Code and Core of Criminal Procedure strengthened the legal system.

The sanctioned strength of the court was 16 but for over half a century, it functioned with just 7 judges. The court was a court if final appeal, unless matters were grave enough to be referred to the Privy Council. Most of the Council's decisions have been satisfactory, although some created a great deal of confusion.

The last appeal of the Privy Council was disposed on in 1949, just before the Constitution of India came into effect. With that, the Federal Court was abolished and the Supreme Court of India was established with High Courts in each state.

Post-Independence History
After the formation of the State of Bombay in 1956, the Bombay High Court;s jurisdiction was established over the state and the Union Territories of Daman and Diu, with benches in Nagpur and Rajkot. However, bifurcation of the state saw the Gujarat High Court take over the jurisdiction of the Bombay High Court in that region. Furthermore, when Goa was admitted into the Union as a Union Territory, it was put under the Bombay High Court's jurisdiction.

The High Court of Bombay (Extension of Jurisdiction to Goa and Daman and Diu), 1981 established a Panaji bench of the court for Goa and Daman and Diu affairs. This continued even after Goa became a state.

The Court has delivered several memorable and historic judgments. One such was Nanavati vs State of Bombay (1960), which eventually led to the abolition of jury trials in India. Today, the court assumes particular importance in economic cases because of the economic importance of Bombay.

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