Análisis de impacto

The Charter of 1726 made a provision for the establishment of a Mayor's Court in each Presidency Town. The Mayor and Alderman of the Corporation of the Presidency Town were to constitute, the Mayor's Court established at that town. The Mayor or Senior Alderman with two other Aldermen was to constitute quorum of the Court. The Mayor's Court was to be the Court of Records. It was empowered to hear and try all civil suit pertaining to the persons living in the Presidency Town an working in the Company's subordinate factories. Thus, the Charter of 1726 conferred on the Mayor's Court jurisdiction withregard to civil matters arising with the Presidency Town, and i subordinate factories. Thus, the Charter of 1726 conferred on to Mayor's Court

jurisdiction -with regard to civil matters arising with the Presidency Town and its subordinate factories.

The Mayor's Court was also given testamentary jurisdiction. It was empowered to issue letters of the administration to the legal heir of the deceased person, failing him, to his principal creditor and failing him, to any other person deemed proper by the Mayor's Court for this purpose. It was also empowered to grant probates of wills of the deceased persons. The Court was given- power to punish persons found guilty of its contempt.

Under the Charter of 1726 the Governor and five senior members of the Council were to be Justice of the Peace and they were also to exercise the criminal jurisdiction. They had power to arrest and punish persons for petty criminal offences.

Before 1726 there was no uniform judicial system for Company's settlement in India. The Charter of 1726, for the first time, made provision for the introduction of a uniform judicial system in all the three Presidency Towns, Bombay, Calcutta and Madras. The Charter, for the first time, introduced royal Courts in India. The Mayor's Courts to be established under the Charter were to derive their authority from the British Crown and not from the East India Company and thus they were to be Brief Crown's Courts and not the Company's Courts. Thus, the Charter intended to introduce such Courts in India as having status equivalent to that of the Court in England.

Under this Charter an attempt was made to make the judiciary (i.e., the Mayor's Courts) independent of the executive control. The judges of the Mayor's Courts were not to be appointed by the Governor and Council. The Governor and Council could dismiss an Alderman on reasonable cause being shown against him, but the dismissal order could be challenged by the dismissed Alderman in the Privy Council in England.

The Charter failed to maintain complete separation between the executive and the judiciary. The executive (the Governor-in-Council) was fully competent to remove any Alderman (a judge of the Mayor's Court) on reasonable cause being shown against him. No doubt, the dismissal order could be challenged by the dismissed Alderman in the Privy Council England but in practice this limitation on the

dismissal powers of the Governor-in-Council was nominal. Besides, the executive (i.e., the Governor-in-Council) was given wide judicial powers. The Governor and five senior J members of the Council were to constitute Justice of the Peace 'i and they were to exercise the criminal jurisdiction. Thus, the executive was still predominant.

The conflict between the Mayor's Courts and Governor, and Council created much confusion and chaos in the settlement. On account of it the Company requested the British Crown to issue a new Charter so as to introduce suitable amendment in the Charter of 1726. In 1753, a Charter known as the Charter of 1753 was issued by British Crown.

In short, under the Charter of 1726 the appointment of the Mayor and Aldermen was not in the hands the Government and Council (the executive government of the place) but under the Charter of 1753 the power of appointment the Mayor and Aldermen was given to the Governor and Council. The power of removal of the Alderman was already vested in the Governor and Council. As a result, the Charter of 1753 made the judiciary subservient to the executive. Bolt appears to be right in his statement that so long as the Mayor's Court had the powers of electing their own members to fill up all vacancies, it was a great degree independent, but when the right of electing Aldermen was transferred from their own body to the Governor and Council who thereby had unconstitutional powers of making and unmaking of the judges, the Court lost its independence.1 The Mayor's Courts became the branches of the Company's executive government. In short, so far as the judicial independence is concerned the Charter of 1753 was much inferior to that of 1726.2 The Governor and Council were to hear appeals from the Mayor's Courts and they were to decide criminal cases also.

However, the establishment of these court should be appreciated for making a good beginning of the establishment of a uniform judicial system in the (Company's settlements on the basis of English Law and procedure and thereby laying the foundation for the establishment of the improved courts in future.3 In 1770, Bolt made a significant attempt to make the Mayor's Courts independent. He suggested that the Company's

1 _{Love, Vestiges of Old Madaras, Vol III, p. 440}

2 _{Cf. Dr. M.P. Jain, Indian Legal History, p. 68}

powers of obstructing or interfering with the due course of justice should be taken away and the Mayor's Court should be independent of the Governor and the Council and a Court of Appeals should be established therefore and this Court of Appeals must be independent of the Governor and the Council or any other powers in India.1

In 1774 the Calcutta Mayor's Courts was replaced by the Supreme Court. In 1798 the Mayor's Court of Bombay and Madras were replaced by the Recorder's Courts. The .Regulating Act empowered the British Crown to| establish a Supreme- Court at Calcutta by issuing a Charter. The British Crown issued a Charter in 1774 establishing the Supreme Court of Judicature at Calcutta. The Charter of 1774 superseded the provisions of the Charter of 1753 and resulted in the abolition of the Mayor's Court at Calcutta.

The Charter of 1774 made provisions for the appointment and removal of the judges as well as for the jurisdiction, powers and functions of the Court on the basis of and in accordance with the Regulating Act, 1773. The Supreme Court established under the Charter of 1774 consisted a Chief Justice and three Puisne Judges. Only those persons who were barristers of not less than 5 years standing could be appointed by the British Crown and they were to hold office during the pleasure of the Crown. The Supreme Court was a Court of record. It was conferred on civil, criminal, admiralty and ecclesiastical jurisdiction.

The Court of Collector, Quarter Sessions, Court of i Requests, Sheriffs, etc. were put under its control and supervision j and for this purpose it was also authorised to issue writs of 'Certiorari, mandamus, error or procedendo to these Courts.

However, it is to be noted that the Supreme Court was not empowered to try the Governor-General and members of the Council for any offence except treason or felony.

The conflict between the Supreme Council and the Supreme Court reached to a very serious stage. The British Parliament appointed a Parliamentary Committee to make inquiries in the matter and prepare a report. The Committee presented report on the

conflict between the Supreme Councils and the Supreme Court in 1781. On the basis of this report the British Parliament passed an Act' in 1781. This Act is known as the Act of Settlement, 1781.

The analysis of the provisions of the Act makes it clear that the Act was substantially in favour of the Governor-General and Council and against the Supreme Court. The Governor-General-in-Council was made supreme and arbitrary. The Britishers were more interested in the acquisition of territories in India and therefore they made the executive (i.e the Governor-General-in-Council) strong and supreme and did not allow the Supreme Court to introduce rule of law and independent judiciary in India. The idea of the judicial control of the executive was thus frustrated and the executive was sent beyond the judicial control.