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Indian Lawyers And Judges In Privy Council

The Indian legal system owes a hierarchical judicial system to the colonial rulers. The systematic development of judicial institutions, judicial principles and laws has taken place during the British regime. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly known as Privy Council[1], playing a significant role in shaping the legal system of India.

Privy Council: Origin And Establishment

The Privy Council was the judicial body which heard appeals from the various courts of the British colonies including India.[2] The origin of Privy Council can be traced back to the Norman Conquest in 1066 which played a very important role in shaping the English Law and the constitution of courts of justice in England, introducing a powerful Central Government in England controlling executive, legislative and judicial departments.[3]

The Normans ruled over England through Supreme Federal Council known as Curia Regis. However, gradually with the passage of time, Curia gets divided into two distinct bodies, namely, Curia Regis and Magnum Concilium. Out of them, Curia Regis was to perform judicial functions and Magnum Concilium was to deal with executive matters.[4]

In the reign of Henry II, the Curia Regis was divided into two separate professional bodies due to tremendous increase in its work. It eventually evolved into two great common-law courts � the Court of King's Bench and the Court of Common Pleas. In course of time, the Privy Council originated from the smaller Council of the King. In this way, the Privy Council was established during the middle of the 16th century.

Composition Of Privy Council

Earlier, the Privy Council used to do its work by means of system of Committees and Sub-committees. However, the Committees did not have permanent existence and membership and mostly members were laymen.[5] This was severely criticized by Lord Brougham in his famous speech of Law Reforms in the House of Commons in 1828.[6] His strong protest against laymen hearing appeals led to the passing of the Judicial Committee Act, 1833[7] by the British Parliament.

This statutory committee was known as The Judicial Committee of the Privy Council (JCPC). The JCPC is composed of Lord Chancellor, Lord President, Privy Councillors holding high judicial office and Lords of Appeal as the Crown may appoint. Ordinarily, the JCPC is of three members but in important cases generally five members preside over the Committee meeting to hear appeals.[8]

The right to appeal from the colonial courts to the Judicial Committee of Privy Council (JCPC) in London was a major legal sinew that tied the Common Law world together, making the JCPC the major archive for many of the new histories of law and colonialism.[9] As far as India was concerned, the Privy Council acted as an appellate body since 1726 with the establishment of Mayor's Court in India.

The Act also provided for the appointment of two retired Indian judges as assessors to the Judicial Committee.

Appointment Of Indian Judges To Privy Council: Why?

There were a number of evils in the then existing system of appeals from High Courts to the JCPC. The unsatisfactory disposal of Indian appeals by it, particularly in cases where questions of Hindu and Muslim laws were involved, caused much resentment in India. The English judges who mainly constituted the JCPC did not have satisfactory grasp of the fundamentals of the two systems � Hindu and Muslims. But for an English judge who knew nothing of Arabic and Sanskrit and who had no knowledge of the practices and traditions of the two communities, it was very difficult to ascertain the precise rules of the two systems.[10]

In the sphere of personal laws of Hindus, the English judges used to depend upon the English translations of Sanskrit books which did not really represent the prevalent customs and usages, largely because they did not take into account the customary law. The result of this state of affairs was that, at times, the principles enunciated by the English judges were quite contrary to the laws and practices of the Hindus.[11] Even Englishmen realized the difficulties. For instance, Sir W.C. Pethram criticized several judgments which had been decided by the JCPC on the ground that they were erroneous.[12]

Almost similar was the situation in relation to the Muslim law. In a case, the JCPC held that under Muslim Law, a perpetual family settlement expressly made as Waqf was the ultimate gift to the poor.[13] The Muslims considered this as inconsistent with the provisions of their law and religion.

With a view to meeting this situation, some slender efforts were made. In 1833, a system of appointing two paid assessors who had been Indian or colonial judges was introduced. They were to attend the sittings of the Privy Council but they were not authorized to give any vote. This provision helped the Privy Council judges in having full knowledge about Indian peculiarities and legal position in detail from the Indian assessors. Under this provision, appointments were made from the retired judges of the Supreme Courts. No retired judge of the Sadr Diwani Adalat was ever appointed on this post.

Later on in 1871, this policy was abandoned in favor of making the Indian experts members of the Committee. The appointment of Indian judges and lawyers as assessors was not that easy as could be thought. There were a number of debates over the same.

Appointment Of Indian Judges: Some Interesting Debates

The first note of discord among the consensus in London was struck by the Indian Office. Leo Amery, the Secretary of State for India commenting on the itinerant proposal, noted that �the position of India in relation to this suggestion of increasing the scope of JCPC seems to be to bristle with awkwardness that it may even, when they are recognized, kill the scheme before it is hatched.�[14]

In 1897, Lord Stanley of Alderly moved a motion in the House of Lords before Her Majesty's Government. He said, �Justice Amir Aly was perfectly fit to be an assessor for Muslim cases, and whenever he has finished his time for being entitled to half his pension as a High Court Judge, he would be ready to come to this country. If he is fit to be a High Court Judge, it cannot be said that he is not fit to be an assessor to the Judicial Committee.

With regard to a Hindu assessor, Mr. Bhattacharya, the author of a commentary on Hindu law, is stated to be in other ways, such as knowledge of Sanskrit, perfectly fit to be a Hindu assessor. Other Hindu names had been given him, but as they do not equal Mr. Bhattacharya in merit, it is unnecessary to refer to them.�[15]

The key question was whether India could participate equally with the other dominions in the new expanded JCPC. The Lord Chancellor consciously avoided asking the question in the meeting with the dominion representatives, noting that it might have completely quenched their warm attitude. The key problem was that if India participated in the scheme, Indian judges would be enabled to sit with the JCPC in India and, to the same extent as other Indian judges, be eligible to be nominated to the commonwealth pool.[16]

On the other hand, the height of dissatisfaction in India can be gauged from the fact that almost every writer and commentator, on the then existing constitutional and political problems, spotlighted this problem.[17] Sir Tej Bahadur Sapru wrote about the same thing.[18]

Mr. Jinnah speaking in the Central Legislative Assembly not only expressed his regret but condemned severely the unsatisfactory way of disposal of certain questions of the Hindu and Muslim laws by the JCPC. He said:
�Then you find in the Privy Council, for which I have great respect although I have no hesitation in saying that the Privy Council have on several occasions absolutely murdered Hindu law and slaughtered Mohammedan law with regard to common law the English law, of which they are the masters, undoubtedly they command the greatest respect of every practitioner and of every judge in this country.�[19]

However, with the appointment of Syed Amir Aly in 1912, there had also been a more or less unbroken presence of a native Indian judge.[20]

Since the late nineteenth century, judges with Indian experience had sat on the JCPC, initially as assessors, and then as full members. However, the constant stream of appeals from India and the creation of an Indian appeals division meant that the Indian judges need not sit in judgment on appeals from the other dominions.[21]

  2. Ibid
  3. George W. Keeton, The Norman Conquest and the common law, 81-113, 201-222
  4. Supra, Note 1
  5. Ibid
  6. J.P. Eddy, India and the Privy Council: The Last Appeal, 66 LQR 206, 208
  7. Statutes 3 & 4 William IV
  8. O. Hood Philips, A First Book of English Law, 69-70
  9. Dr. Nandini Chatterjee, Judging Empire: The Global Reach of the Judicial Committee of the Privy Council, 2013
  10. K.P. Misra, Federal Judiciary in India: A Historical Retrospect, 158-159
  11. Ibid
  12. See, Sunderlingaswami Kamaya Naik v. Ramaswami Kamaya Naik, 1891 IA, 55
  13. See, Abdul Fata Md. Ishak and Others v. Russoway Dhur Choudhary and Others, 22 I.A. pp. 76
  14. Leo Amery to Lord Wavell, Privy Council: Conditions of Appointment for Indians, January 6, 1944
  16. Rohit De, �A Peripatetic World Court" Cosmopolitan Courts, Nationalist Judges and the Indian Appeal to the Privy Council, 838
  17. Supra, Note 10
  18. Sir Tej Bahadur Sapru, The Indian Constitution 1926, pp. 145
  19. Legislative Assembly Debates, (1925), pp. 1175
  20. Supra, Note 16
  21. Ibid

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