AFREEN ALAM writes about the appellate courts and the jurisdiction of the Privy Council in colonial India.
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THE Privy Council had the highest appellate authority over all courts in British India. The King was the center of justice in the English legal system, and in that capacity, he could hear any petition filed by a party with respect to any matter. This was called the royal prerogative power of the King, which he exercised with the help of his Council, called the King-in-Council.
The subjects of the British colonies were regarded as subjects of the English King, and therefore the King could exercise his prerogative power to hear the cases.
The Judicial Committee of the Privy Council was the last Court of Appeal and used to make recommendations to the King-in-Council, and finally, the King exercised his royal prerogative of justice. The Privy Council was in power to hear appeals and petitions arising from the decisions of any and all courts in the British colonies. Hence, the Privy Council was the last Court of Appeal and competent to answer questions of colonial law, ultimately.
The Privy Council had broad jurisdiction to decide the appellate matters relating to the right of property, including the political and legal rights which were at variance from one province to another.
The appeals from India could be filed as a right, or with the special leave of the Privy Council.
Appeals as a right
The decision of the crown courts or the company’s courts was to lie before the Privy Council, as a matter of right. There were appeals from decisions of the Mayor’s Court, appeals from the decision of the Recorder’s Court, appeals from the decision of the Sadar Adalat, appeals from the decision of the Sadar Diwani Adalats of Madras and Bombay, and appeals from the decision of the Supreme Court.
By the Charter Act, 1726, the Mayor’s Court was established in the Presidency Towns of Bombay, Calcutta, and Madras. Appellate jurisdiction of the Privy Council was extended for the first time to Indians by this Charter.
A second or final appeal could be made to the Privy Council in cases where the valuation of the suit was above 1000 pagodas. The Mayor’s Court was replaced by the Recorder’s Court at Madras and Bombay. The final appeal of the Recorder’s Court also rested with the Privy Council.
After the commencement of the Settlement Act, 1718, provisions were made to prefer any appeal from the decision of the Sadar Diwani Adalat in Bengal to the King-in-Council in such civil matters which involve a subject matter valuing not less than 5,000 pagodas. After the enactment of the Regulation V of the Madras Code of 1818, appeals from the Madras Sadar Diwani Adalat could be preferred directly to the King-in-Council, and there was no restriction on the appealable amount.
In Bombay, the right to appeal to the Privy Council was regulated under Regulation V of 1818. However, before this Regulation, the appeal value was to be 5,000 pagodas or more, whereas the Regulation V removed this restriction.
The Supreme Court was set up in 1774, by replacing the Mayor’s Courts. The appellate jurisdiction of the King-in-Council, however, remained unchanged. Hence, an appeal from the decision of the Supreme Court could be referred to the Privy Council if the value of the subject of the dispute was not less than 1000 pagodas.
However, in civil cases, an appeal was required to be made before the Privy Council in the form of a petition, and it was to be moved in the Supreme Court for granting leave to appeal before the Privy Council. Such a petition was to be presented before the Supreme Court within six months from the date of pronouncing the judgment. However, in the case of criminal matters, the Supreme Court had absolute authority whether or not to grant permission to appeal to the Privy Council.
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By the Indian High Courts Act, 1861, High Courts were set up in the Presidency Towns of Calcutta, Bombay, and Madras. After passing the Act, the Supreme Court and the Sardar Diwani Adalat in Calcutta, Bombay, and Madras were abolished.
The decision of the High Court in civil matters was appealable to the Privy Council if the value of the subject matter was not less than Rs.10,000 and the High Court had issued a certificate declaring that the case was fit for preferring an appeal to the Privy Council. The criminal appeal would lie to the Privy Council from any sentence or judgment of the High Court made in exercise of its original jurisdiction and declared by the High Court that the criminal matter in hand was fit for preferring a criminal appeal to the Privy Council.
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Appeals by Special Leave
When the High Court refused to grant necessary certificates on leave, the King-in-Council could grant special leave to appeal in civil and criminal matters. In the case of Hull vs. McKenna (1926), the Privy Council held that the King-in-Council did not encourage such appeals, and the discretion was exercised in very exceptional cases where non-exercise of such discretion was likely to cause some grave injury to any party.
It was noticed that the King-in-Council was more flexible while granting special leave in civil matters than in criminal matters, since in criminal matters, the appeal was much more restrictive. However, the special leave to appeal was granted, where gross miscarriage of justice had been shown. There were a large number of criminal cases in British colonies, and granting of special leave to appeal would have meant a suspension or postponement of the sentence or execution of punishment.
In the case of Ibrahim vs. King-Emporor (1914), the Privy Council observed that:
“[L]eave to appeal is not granted except where some clear departure from the requirements of justice exists; nor unless by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done… There must be something which, in the particular case, deprives the accused of the substance of fair trial or the protection of law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in the future.”
The Government of India Act, 1935, provided for the establishment of the Federal Court in Delhi. The Federal Court’s decision was appealable to the Privy Council if the case was decided by the Federal Court while exercising its original jurisdiction and the special leave to appeal was not necessary. Nevertheless, the old judicial system of appeal from the decision of the High Court to the Privy Council continued even after the establishment of the Federal Court.
After the passing of the Government of India Act 1947, the Federal Court’s jurisdiction was extended by passing the Federal Court (Enlargement of Jurisdiction) Act, 1948. Hence, the Federal Court was conferred with the power to hear appeals arising from the judgments of the High Court, and no special leave was necessary in this regard if the appeal was brought under the provisions of the Code of Civil Procedure, 1908, and with the special leave of the Federal Court in other cases.
Subsequently, the Appellate jurisdiction of the Privy Council was abrogated entirely in 1949 by passing the Abolition of the Privy Council Jurisdiction Act of 1949. In 1950, the Supreme Court of India came into existence and was given wide powers, and it is now regarded as the highest Court of Appeal in India.
The Privy Council played a significant role in the development of law in India. Constitutional law scholar Professor M.P. Jain stated that “the Privy Council served as a bridge between the Indian and the English system over two centuries”. Even now, the judgments of the Privy Council are held in high esteem and are still recognised by the Indian courts, and the Privy Council judgments have a persuasive value to them. Even the High Courts in India accept the Privy Council judgments unless the Supreme Court of India has overruled the said precedent.
(Afreen Alam is a Delhi-based researcher and writer. She is a final year law student at Jamia Millia Islamia, Delhi. The views expressed are personal.)
SOURCE ; .theleaflet.in/
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