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LECTURE VI.

THE LAWS AND THE ADMINISTRATION OF JUSTICE.

THE FOUNDATIONS OF THE EXISTING JUDICIAL SYSTEM-REGULATIONS AND ACTS THE LAWS AND THE COURTS BEFORE THE TRANSFER OF THE GOVERNMENT TO THE CROWN-REGULATION AND NON-REGULATION PROVINCESTHE INDIAN LAW COMMISSION-LORD MACAULAY AND THE PENAL CODETHE PROGRESS OF CODIFICATION-SIR HENRY MAINE ON THE INDIAN CODES-SIR JAMES STEPHEN ON THE INDIAN PENAL CODE-THE ESTABLISHMENT OF HIGH COURTS-THE CODE OF CRIMINAL PROCEDURE-CONSTITUTION OF THE CRIMINAL COURTS CRIMINAL JURISDICTION OVER EUROPEAN BRITISH SUBJECTS-CHANGES IN THE LAW IN 1884-THE CODIFICATION OF THE CIVIL LAW-HINDU AND MOHAMMEDAN LAW--CHAPTERS OF THE CIVIL CODE ALREADY ENACTED-SIMPLIFICATION AND CONSOLIDATION OF THE LAW-THE CODE OF CIVIL PROCEDURE-CONSTITUTION OF THE CIVIL COURTS CIVIL JURISDICTION OVER EUROPEANS-THE 'BLACK ACT' OF 1836 -LORD MACAULAY-THE NATIVE JUDGES-DEFECTS IN THE EXISTING JUDICIAL SYSTEM.

ALTHOUGH much had been done by Warren Hastings to reform and organise all branches of the public service, the main foundations of the existing administration of justice in India were laid in the time of Lord Cornwallis. In 1793 the issue of formal and definite legislative enactments began in the series of laws known as the Bengal, Madras, and Bombay Regulations. Since 1833 the term 'Regulation' has ceased to be used; the laws are called, as in England, Acts.' These Regulations and Acts, and such Acts of Parliament as apply to India, constitute, apart from Hindu and Mohammedan law, of which I must speak separately, the civil and criminal law of British India.

Before the transfer of the Government to the Crown, the administration of criminal justice was in an unsatis

factory condition. The police was often oppressive, inefficient, and corrupt. In the greater part of British India, the criminal law and procedure were a jumble based on the old Mohammedan law, eked out and rendered tolerable by the Regulations and Acts of our own Government, by fragments of English law, and by the decisions and intructions of the superior courts. Civil justice was in a worse condition. The law was only to be found in a wilderness of enactments and circular orders' of the courts, and as the number of these increased they became in course of time, as Mr. Cunningham says, 'hopelessly unwieldy, entangled, and confusing. Human diligence shrank from the task of searching amid the voluminous provisions of obsolete or repealed legislation for a germ of living law, and grave illegalities not unfrequently occurred, owing to the ignorance which the chaotic condition of the statutebook rendered almost inevitable."

These difficulties were increased by the devotion of the superior Indian courts of that time to technicalities which survived long after they had ceased in England to be seriously mischievous. Even in the later years of the East India Company, the civil courts often seemed to be intended rather for the performance of certain forms and ceremonies than for the administration of justice.

While this was the condition of the law and procedure, the expansion of the empire was in more or less constant progress, and when new provinces were annexed the Government shrank from taking the judicial system of the older provinces as a model. Apart from such reasons, when the people had never been accustomed to anything but personal rule of the roughest 1 India and its Rulers, p. 203.

sort, it was often necessary, on the first introduction of our Government, to concentrate executive and judicial authority in the same hands. Government by regular course of law cannot be substituted in a moment for a Government of irresponsible power. Moreover, the simpler forms of administration were much cheaper.

It thus came to pass that there were two systems in force-one in the older provinces, and the other in the territories which had more recently come into our possession. The former were called 'Regulation,' and the latter Non-Regulation' provinces. A Non-Regulation province was one to which the old Regulations and Acts in force in the Regulation provinces had not been extended, in which fewer officers were employed, and in which executive and judicial functions were, to a great extent, exercised by the same persons. Bengal, the North-Western Provinces, Madras, and Bombay, were Regulation provinces; the Punjab, Oudh, the Central Provinces, and British Burma, were Non-Regulation.

It is a mistake, though a common one, to suppose that in the more advanced of the Non-Regulation provinces, as, for example, in the Punjab, when the Government was transferred to the Crown, the administration was conducted in a rough and ready way, in accordance with our officers' own notions of equity, unhampered by law. The Government of the Punjab, in 1860, really deserved better than the Government of the North-Western Provinces or of Bengal, so far as the judicial administration was concerned, to be called a Government by law. In the former case the laws, though simple, were rational, intelligible, and certain; in the latter case the system was so chaotic that there was virtually almost no law at all. When the admirable codes of law and procedure, of which I shall presently

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speak, were introduced, less change had to be made in the system of administering criminal and civil justice in the Non-Regulation than in the Regulation Provinces.

The superiority of the administration which was so marked in the Non-Regulation Provinces towards the close of the East India Company's Government ceased before many more years had passed. Improvement in the older provinces went on rapidly, and, although differences in the form of the administration still exist, the distinctions between Regulation and Non-Regulation Provinces have become much less important than they were. Excepting Burma, a few wild hill tracts on the frontiers alone remain outside the pale of the codes of law and procedure which apply to the whole of British India.

The first steps towards the simplification and improvement of the law were taken in the time of the East India Company, but they led to little practical result before the transfer of the Government to the Crown. In 1833 it was provided by the Act of Parliament which renewed the Company's charter that a fourth member of Council should be appointed, in concert with a Commission, for the purpose of preparing a body of law for British India. Lord Macaulay was appointed member of Council, and the first subject taken up was the preparation of a Penal Code. This work fell chiefly upon Lord Macaulay, and it was completed by him while he was in India, between 1834 and 1838. The code remained as a mere draft for twenty-two years, and it was not until 1860 that it became law. During this interval it was revised from time to time by Lord Macaulay's successors, and especially by Sir Barnes Peacock, the last Chief Justice of the Supreme Court of Calcutta. The long delay in the enactment of the Penal Code,' writes Sir James Stephen, had thus the

singular but most beneficial result of reserving a work which had been drawn up by the most distinguished author of the day for a minutely careful revision by a professional lawyer, possessed of as great experience and as much technical knowledge as any man of his time. An ideal code ought to be drawn by a Bacon and settled by a Coke.'1

Although many valuable recommendations for the improvement of the criminal and civil law were made by the Commission of which Lord Macaulay was a member, the Penal Code was the only important result of its labours. In 1853, when the Company's charter was again renewed a fresh Commission was appointed in England, and this was followed in 1861 by a third Commission, for the purpose of preparing a body of substantive law for India, and also to consider and report on such other matters relating to the reform of the laws of India as might be referred to them by the Secretary of State.' To these two Commissions, whose work continued until 1870, and to the eminent men who since the time of Lord Macaulay have held the office of legal member of Council, we owe the succession of excellent laws which have been passed by the Indian Legislature, and which form chapters in a system of codified law. This system is not yet complete, but there is no country where the work of codification has made greater progress. British India,' writes Sir Henry Maine, is now in possession of a set of codes. which approach the highest standard of excellence which this species of legislation has reached. In form, intelligibility, and in comprehensiveness, the Indian codes stand against all competition.' 3

1

History of the Criminal Law, vol. iii. p. 300. 2 16 and 17 Vic. c. 95. 3 The Reign of Queen Victoria—'India,' vol. i. p. 503.