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PRIVY COUNCIL AND ITS TRYST WITH INDIA

JUDICIAL ACTIVISM AND SUPREME COURT OF INDIA

Introduction

It has been Seventy-five years since India got its independence from British rule, however, the marks of the colonial rule are still present extensively over every aspect of the world’s largest democracy. Indian judiciary has undergone extensive changes and reforms ever since our country got freedom, however, the remnants of the English rule still linger on. From important legislations and acts to precedents and landmark judgements, it is impossible to completely disentangle our colonial past.

The Judicial Committee of the Privy Council which once played the role of the final Court of appeal in deciding cases and appeals from all the countries in the British Empire, played an important role in streamlining and developing the process of law in India and improving on its many defects and shortfalls. [1]

History of the Privy Council

The Privy Council has a long and varied history stretching back to the time of the Norman Conquest and Curia Regis in 1066. The Curia Regis, as the Supreme Feudal Council of the Normas through which they oversaw and ruled their kingdom. Curia Regis was an exclusive body consisting only of members of the Royal Family, high officials of State and very important clerk members. The Privy Council eventually originated out of this small council as the engagements of the Regis kept increasing. Originally, it had the exclusive power to adjudicate on appeals from the colonies and this formed the basis of its jurisdiction and power.[2]

As time progressed and appeals kept increasing, a lot of shortcomings of the Privy Councils were exposed. Chief among them was the inadequacy to deal with the large number of appeals and the ignorance of legal knowledge of the justices.

Therefore, in 1833 The Judicial Committee Act established the permanent statutory body of judges called the Judicial Committee of the Privy Council. The jurisdiction of this committee was to hear appeals from all over colonies and decide on them. They were to act as the final judges on all important matters arising out of the settlements. They derived their authority from the King and had the right to do justice in his name.[3]

Privy Council and India

Just like how the development of judiciary and law in India during British rule was inconsistent and askew, the process of appeal to the Privy Council followed that route. The very first appeals from India can be traced back to 1679, years before a more formal and established rule was established. These cases mainly dealt with oppression and tyranny perpetuated by the East India Company officials on the Native Indian population.[4]

It was the 1726 charter issued by the British for the presidencies of Calcutta, Bombay and Madras which had the first formal provisions for appeals to the Privy Council. Governor – in – Councils which was the highest appellate body in each of these presidencies had the power to certify if a case was fit for appeal to the Privy Council. This system continued up until 1773 but was a very ineffective one and very few cases from India were heard by this imperial body.

With the increasing load on the Indian judiciary and lack of professional lawyers and barristers, the British issued the Regulating Act of 1773 which had statutory provisions relating to appeals to the Privy Council. The Charter of 1774 which was enacted to establish the first Supreme Court in existence contained a provision in Section 36 to allow civil appeals from the Supreme Court to the Privy Council. This period was also characterized by competing and conflicting jurisdiction between the Company Courts and the Crown Courts which led to a lot of confusion and chaos and frequent changes in legislation by the British.[5]

This situation was finally rectified, after the British amalgamated both systems, followed by the creation of High Courts in Calcutta, Bombay and Madras. Cases from High Court could be directly appealed to the Privy Council. There was also a special provision called ‘Special Leave to Appeal’, which could be used in terms of important constitutional or legislative questions.[6]

Analysing the Role and Effect of the Privy Council on India

As mentioned earlier, The Privy Council’s impact in India gradually grew through the years and more progress and eagerness on the part of the British judges to entertain Indian cases. By the early, 1930s Indian appeals constituted a significant majority of the caseload presented before the Privy Council. Unlike its counterparts in other colonial countries, Indian leaders were not particularly concerned with or eager to dispose of the Privy Council, as the final court of appeal.[7]

The Privy Council no doubt had an important and crucial role to play in the development of law and judiciary in India. It also played a vital role in laying down landmark judgements which helped clarify important aspects of the acts and statutes and still serve as precedents. For example, the case of Mohori Bibee v Dharmodas Ghose, laid down that a minor’s contract would be void ab inito under the Indian Contract Act.[8] According to the Privy Council, Section 11 of the ICA provides that only persons above the age of 18 have the contracting capacity to enter contracts. This judgement had been affirmed by the Supreme Court of India in a subsequent case.[9]

Thus, the Privy Council was a unique body distinct from other judicial bodies of its time and played a significant role in moulding and framing substantive laws for India. It played an important role in introducing and assimilating the common law system in our country, while also making important contributions to the personal laws of Hindus and Muslims.[10]

Nevertheless, the enduring colonial demeanour inherent within the Privy Council persisted, impeding its ability to function as a truly inclusive forum for dispensing justice due to its deficiencies and the prevailing attitudes of its judges. Judges were mostly from England and had little knowledge of prevailing customs and local conditions of the countries whose cases they were deciding. Efforts to increase the diversity of the court by admitting more judges from different colonies also failed due to opposition from various sources. Similarly, the location of the Privy Council made it hard for a lot of appellants from far off colonies to bring forth their appeals and the exorbitant costs associated with hiring an English counsel, travelling to London proved to be too expensive for a lot of individuals.[11]

Conclusion

The Privy Council undoubtedly left a very enduring and indelible mark on our legal framework and its processes. Its judgements and its interpretations continue to serve as a vital cornerstone in our legal thoughts and understandings and form the bedrock of lot our legal system. It was not a perfect system, with its shortfalls and deficiencies clearly visible and never truly addressed by the British. However, its impact will always have long term significance and leave behind a rich lasting legacy.

Author(s) Name: Manav Chakraborty (OP Jindal Global University, Sonipat)

[1]  ‘Beginners Guide to Privy Council’ (Supreme Court – U.K. 2009) <https://www.supremecourt.uk/docs/beginners-guide-to-the-judicial-committee-of-the-privy-council.pdf> accessed   01 July 2023

[2] Sumeet Malik, ‘Landmarks in Indian Legal and Constitutional History’ ( 12th edition, Eastern Book Company 2019)

[3] Ibid

[4] Mitch Fracas, ‘Privy Council Appeals Data’ (Anglo-Indian Legal History, 2010) <http://angloindianlaw.blogspot.com/p/privy-council-cases-from-india-before.html> accessed 02 July,2023

[5] Dr. Nandini Chatterjee, ‘India’ (Privy Council Papers)

<https://privycouncilpapers.exeter.ac.uk/contexts/jurisdictions/territorial/india/> accessed 01 July,2023

[6] Sumeet Malik (n 2)

[7] Sir Ivor Richardson, ‘The Privy Council as the Final Court for the British Empire’ (2014) 91 VUWLRPRC 103

[8] Mohori Bibee v Dharmodas Ghose [1903] LR 30 [1903] IA 114

[9] Indian Contract Act 1872, s 11

[10] Dr. R.M Dave, ‘Evolution and Development of Privy Council’ (2019) 9 Indian Journal of Applied Research 44

[11] Rohit De, ‘A Peripatetic World Court” Cosmopolitan Courts, Nationalist Judges and the Indian Appeal to the Privy Council’ (2014) 32 Law and History Review 821