Dr. Birendra Saraf, Senior Advocate, Bombay High Court
Steeped in a glorious and eventful 158-year history, every corridor of the Bombay High Court is soaked with stories of the past. Traditions, customs and heritage form the core of its functioning, with the remnants of the past blending with modern innovation and progress.
After the island of Bombay changed hands as a dowry from the King of Portugal to Charles II, the then King of England, by a Charter of 1668 transferred Bombay from the Crown to the East India Company (“Company’) authorizing it to make laws and set up law courts. The first Court was established in Bombay in 1672 by the then Governor Gerald Aungier – the architect of the judicial system in India.[1] In a time of no technology, in order to convey the formation of a court vested with the power to settle disputes, Justice George Wilcox – the first Judge in Bombay – was paraded around the city on horseback.[2] This historic occasion was celebrated with due pomp and ceremony with a parade going right through the Fort area – from the Bazaar to the Guildhall (Courthouse). His Honour was accompanied on foot by trumpeters, kettle-drummers, attorneys and common pleaders, the keeper of prisons and a train of servants. 20 Hindus, 20 Muslims and 20 Christians were made to walk in rows of two, representing their caste. This grand ceremony marked the birth of the formal judicial system in Bombay and India. Ironically, the main promise of Governor Aungier in his speech during this ceremony of a fair and just judicial system that would treat inhabitants of all nationalities – English, Portuguese and Indians – on an equal footing[3] remained to be executed. Executive dominance and interference prevented an independent functioning of the Courts.
The Courts in Bombay were created with a strong colonial foundation that was further propagated throughout the British rule, the remnants of which are strongly entrenched even in present day activities. From as early as December 1672, orders protecting Colonial interests were passed regularly. A few resident’s houses were razed for ‘drinking and gambling on the Sabbath.’ Further, several residents were tried for spending a Sunday in the tavern rather than in the Church, ‘in scandal of the Christian religion’.[4] Witch trials were also prevalent in this Court, presided by Aungier himself.
The Charter of 1683 led to the end of this first step of establishing a judicial system in Bombay. It ordered the creation of an Admiralty Court, which was very essential in a booming port like Bombay. The Chief Justice of the Court was referred to as ‘Judge Advocate’. The composition of this Court was one jurist learned in civil law and two merchants appointed by the Company. This Court was looked upon with jealousy by the local Council who did not want any institution to have powers exceeding their own. They limited this Court to its lowest possible independence in stark contrast from its earlier wide-ranging powers. The executive regained power in the island city.[5] Thus the justice system, which was left in these crude hands, continued to languish. In an interesting case of that time, a Councillor named Mr. Bradyll was on a stroll with his wife. A horse- rider rode into them and this made Bradyll raise his voice, to which the horse-rider mentioned that if he had had a gun then he would have taught Bradyll a lesson. The following day, the whereabouts of this rider was not known. Suspecting a person named Matthew Bogle, a case was instituted against him. The Councillor Bradyll was both the judge and plaintiff in this case. The system – in the hands of the executive – had slowly descended into anarchy.[6]
In 1718, Governor Charles Boone attempted to set up a court along more liberal lines in order to revamp the judiciary. This Court, helmed by the Chief Justice, composed of five British judges along with a Portuguese, Hindu, Muslim and Parsi judge each. The Chief Justice made 100 pounds per annum. However, due to continuous infighting within the executive, this Court made no further headway.[7]
As the Company’s trade flourished and boomed, there arose a need for a formal structured justice system to replace the unsatisfactory arrangement for administering justice. King George I issued a Royal Charter in 1726 to achieve this end. A Mayor’s Court was established in Bombay, the composition of which was a Mayor at helm supervising nine Aldermen. Seven of these were compulsorily British citizens chosen by the local government, generally from civil servants or merchants who had no training or experience in dispensing justice. The Charter established in several settlements of the Company, a King’s Court instead of the Company’s Court. To serve the interest of Englishmen dying intestate in India, ‘Testamentary Jurisdiction’ was first introduced in the country. Formal Criminal jurisdiction was established and the Governor and five senior councilors were to act as ‘Justices for Peace’. Three of these Justices together formed ‘The Court of Oyer and Terminer’, their scope enveloping all criminal wrongs other than high treason. The Mayor’s Court was the first Court of Record in India and this was the first time a court directly drew its authority from the crown and not the Company. The Privy Council remained the final Court of Appeal. This was of great irony as the courts drew authority from the King in a territory where The King of England had no title and where his writ had no authority.[8]
A charter issued in 1753 excluded disputes between natives from the jurisdiction of the Mayor’s Court, as the British primarily wished to rule on their issues only. However despite this, a large portion of the workload was of native Indian litigation as the common man also continued to resort to this Court. A further improvement was made to this Court, with a Jury System being introduced in the criminal division. A Petty Jury was instituted for the trial and a Grand Jury for the preliminary findings. Further, the death sentence power was taken away from judges and granted to the juries. The Charters of 1726 and 1753 led to the first formal introduction of Indians in the Judicial System, albeit only Christian Indians could act as jurors in the criminal Court. The punishments given in these criminal courts were barbaric, with whipping, maiming, mutilation and flogging unto death holding a common place in day-to-day activities.[9] The courts have a come a long way since then.
The Mayor’s Court operated from Customs House near Town hall for 70 years. However, with the continuing boom in prosperity, the evolution of civilization had to bring with it the evolution of a judiciary. A Recorder’s Court was established in 1798, which ultimately proved to be the official base of the High Court. This Court was similar to a Mayor’s Court but consisted of a Mayor, three Aldermen with an added ‘Recorder’ appointed by the Crown, who had to be a barrister of at least 5 years experience. He was accompanied by a Hindu Pandit learned in the Shastras and Muslim Maulvi learned in the Shariat, who would assist in the cases of their respective religions. This Court was housed in Admiralty House also known as the Hornby House, which later became the Great Western Hotel Building in the Colaba area. This building housed the Recorders Court till 1824, the Supreme Court of Bombay and finally the High Court of Judicature at Bombay till the present building was completed in 1879.[10]
The Supreme Court in Bombay substituted this Court in 1824 under a Statute of George the IV, Letters Patent, 1823, having jurisdiction over the town and island of Bombay and continued till 1862. Similar courts were established in Calcutta and Madras, forming a formal network of courts for the first time. The biggest reform in this Court was that all the judges had to be lawyers only.
Around the same time, the Government of Bombay was ordered to set up “Adawluts”. These Adawluts marked the official expansion of the Company’s jurisdiction from the confines of its factories. These Adawluts – both Diwani (Civil Courts) and Foujdari (Criminal Courts) – were set up in districts and later, Sudder Adawluts were set up with appellate powers due to complaints of abuse of power.[11] They were primary company courts. The judges of the Sudder Adawluts were selected from the members of the Bombay Civil Service. All matters outside the Bombay Island were referred to these Adawluts. There arose a clash of jurisdiction with the Sudder Adawluts that were wholly independent of the Supreme Court.
Judicial independence was established during this time after an interesting incident. Sir John Peter Grant, the then Justice of the Supreme Court who holds the largest portrait in the present High Court, set this precedent. The Governor of Bombay had ordered that no writ issued with respect to any person outside the city limits should be entertained. Sir Grant, who opposed this interference of the executive, locked up the Supreme Court and sailed for England. The Court remained locked for five months. In this odd fashion, the separate authority of the judiciary was firmly cemented.
After the Rebellion of 1857, the English Government took complete control of British India and the Company lost significant power. The Indian High Courts Act, 1861 was introduced, and the Supreme Court in Bombay was merged with the Sudder Adawluts to establish the High Court of Bombay by Royal Letters Patent with comprehensive jurisdiction including suits and matters of every description, civil, criminal, admiralty, testamentary, matrimonial and insolvency. The High Court was a merger of the Supreme Court into its original side and the Sadar Diwani and Sadar Foujdari Adawluts into its appellate side. The Charter was issued on 26th June 1862, and the Bombay High Court came into formal existence on 14th August 1862. [12] The Judges were to be appointed by the Sovereign. One-third judges including the Chief Justice were barristers of United Kingdom, one-third from the judicial branch of the Indian Civil Service and the balance from the subordinate judiciary and Indian Lawyers practicing in the High Court. With an authorized strength of fourteen, the High Court worked on a strength of seven judges for sixty years. There was no ceremonial inauguration of the High Court except a declaration made by the Judges. The salary of Judges in the High Court started at around Rs. 3,333/- per month and continued at that for long till it was increased to Rs. 3,700/- and thereafter by Lord Curzon to Rs. 4,000/- The Privy Council remained the final Court of appeal. This later changed to the Supreme Court of India post 1950.
The Bombay High Court, constructed by Lt. Col. John Augustus Fuller, is built overlooking the Oval Maidan. This maidan was once land that was flattened out by the British in the late 1700s, fearing an impending French invasion. The maidan was the open land in front of the British Fort that would prove as a hindrance for any invasion. This fort was demolished in 1860 and the High Court was built on its plot, along with the Mumbai University and the famed Rajabhai clock tower. This entire building was built for a paltry fee of Rs. 16,44,528, which was then a huge figure. This was Rs. 2,688 less than the original amount.[13]
On the night of 14 August 1947, the Central Court witnessed the end of the 85 year British era of the Bombay High Court when at midnight the last English Chief Justice Leonard Stone, in full ceremonial dress, unfurled the national flag and saluted it while the other judges in bands and gowns bowed before it.[14]
On 26 January 1950, the Constitution came into being which now governs the power and jurisdiction of the High Court. The reorganization of the States led jurisdiction of the Bombay High Court being extended and formation of benches at Nagpur and Rajkot (which was severed on the formation of the State of Gujarat in 1960). The Parliament by an Act widened the jurisdiction of the Bombay High Court to include Goa and Daman and Diu on 30 October 1982.
Since then, the Bombay High Court has been one of the finest judicial institutions of the country. Witness to historical moments and a primary contributor to the development of robust and independent judiciary in India, the Bombay High Court is a treasure trove of legacy and heritage. The rest, as they say, is history.
Dr. Birendra Saraf is a Senior Advocate at the Bombay High Court. He can be reached at birensaraf@sarafchambers.com.
Photo Credits: Dinodia Photo (1907)
Notes:
[1] India, Legal Service. “Bombay High Court.” Legal Service India, http://www.legalserviceindia.com/calendars-causelists/high-court/bombay.htm.
[2] Khorakiwala, Rahela. From the Colonial to the Contemporary: Images, Iconography, Memories, and Performances of Law in Indias High Courts. Hart Publishing, an Imprint of Bloomsbury Publishing Plc, 2019.
[3] High Court at Bombay: 1862-1962. Govt. Central Press, 1962.
[4] Stern, Philip J. The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India. Oxford University Press, 2012.
[5] Raj Kumari Agrawala, “History of Courts and Legislatures” in Indian Legal System by Joseph Minattur, op. cit., pp. 112-25.
[6] Ranganathan, Murali. Govind Narayan’s Mumbai. Anthem, 2009
[7] Vachha, Phirozeshah Bejanji. Famous Judges, Lawyers and Cases of Bombay; a Judicial History of Bombay during the British Period. N.M. Tripathi, 1962.
[8] Vachha, Phirozeshah Bejanji. Famous Judges, Lawyers and Cases of Bombay; a Judicial History of Bombay during the British Period. N.M. Tripathi, 1962.
[9] Supra.
[10] Edwardes. The Rise of Bombay. Cambridge University Press, 2011.
[11] Vachha, Phirozeshah Bejanji. Famous Judges, Lawyers and Cases of Bombay; a Judicial History of Bombay during the British Period. N.M. Tripathi, 1962.
[12] Khorakiwala, Rahela. From the Colonial to the Contemporary: Images, Iconography, Memories, and Performances of Law in Indias High Courts. Hart Publishing, an Imprint of Bloomsbury Publishing Plc, 2019.
[13] Mehrotra, Rahul, et al. The Bombay High Court: the Story of the Building, 1878-2003. Eminence Designs, 2004.
[14] Vachha, Phirozeshah Bejanji. Famous Judges, Lawyers and Cases of Bombay; a Judicial History of Bombay during the British Period. N.M. Tripathi, 1962.(pp. 107).
The Law Review Anthology 
It is a very good article giving details.I expect some photos be produced.
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