The Norman conquest of 1066 marked a significant turning point in English common law.
It brought substantial political, economic, social, and legal changes.
English Kings established centralized institutions like the King's Court or Curia Regis, which is Latin for "Royal Council" or "King's Court."
Evolved from England’s Curia, also known as Curia Regis, or Aula Regis (“King’s Court”)
Introduced during the Norman Conquest (1066) and lasted until the end of the 13th century.
After 1066, the central governing body was called curia regis.
The Curia Regis was foundational for the higher courts of law, the Privy Council, and the Cabinet.
William the Conqueror and Curia Regis
Curia Regis succeeded Witan, a counsel of great men assisting Anglo-Saxon kings (5th-11th centuries).
Witan (lit. 'wise men') advised the king on law, judicial judgments, charters, land transfers, disputes, and elections.
Curia Regis functioned as a modern judiciary, parliament, and executive.
Norman kings after 1066 centralized royal government more effectively.
By the end of the 11th century, the king entrusted business to his Curia, composed of noblemen, church leaders, and royal court officers.
The Curia Regis handled financial, legislative, and judicial matters.
The common-law courts, the Chancery, and the Parliament developed from the Curia Regis.
William established it for efficient national control.
Curia Regis could be Magnum curia regis (larger) or smaller curia regis, depending on the function's magnitude, not its nature.
Two distinct bodies emerged: the Magnum Concilium (larger council) and the smaller council (curia regis).
The smaller council comprised high officials, royal household members, and clerks chosen by the Crown.
The Magnum Concilium was also known as the Great Council.
The great curia regis or Magnum Concilium consisted of tenants-in-chief, great officers, and ecclesiastics holding lands of the king.
This council met on special occasions and was summoned by the king.
When not in session, a smaller council, the lesser or small curia regis, made up of king's officers and magnates at court, replaced it.
The lesser curia regis was essentially the king's royal court.
Curia Regis is a Latin term meaning "king's court," where the king administered justice.
It was a court where people presented social, political, or legal problems to the monarch.
William the Conqueror established Curia Regis to ensure law while ruling.
People brought disputes directly to the king, who rendered judgment from the Bench.
Common Law
The king and advisors traveled to hear cases due to low population density.
Consistent application of prior judgments to new cases.
William introduced the jury system, with 12 men testifying to adjudge matters, especially in revenue.
Henry II focused on building a unified system.
Common law is judge-declared law derived from custom and precedent, originating from Henry II's legal reforms in the 12th century.
It was called “common” because it applied equally across the whole country.
Appointed 18 judges nationwide; 5 stayed with him (King’s Bench), and others traveled to render justice.
Traveling judges were unbiased and created a unified system.
Orders were initially oral, then written.
The Court of Chancery
The Court of Chancery in England and Wales used flexible rules to avoid the slow pace and harshness of common law.
It had jurisdiction over equity matters, including land law, estates of lunatics, and guardianship of infants.
Developed in the 14th-15th century under the lord chancellor to provide remedies not covered by common law courts.
Cases involved civil disputes about property.
The Chancery Court was efficient and fair, encroaching on the inflexible and complicated court of common law.
Equity
Equity is a body of law developed in the English Court of Chancery.
It provides remedies where the law is too inflexible for a fair resolution.
Equity is intertwined with its historical origins in the English common law system.
In jurisdictions following the English common law system, equity is administered concurrently with the common law.
Equity and Common Law
Common law is judge-made law following precedents.
By the 15th century, common law courts faced technical issues, pendency, procedural problems, and rigidity of the writ court.
The Necessity for Equity Court
Juries could be intimidated, and judges could be corrupt.
The King was the source of common law and the fountainhead of justice.
Disputes from common law courts were heard by the King, a process called petitioning the king.
This became complex, and the king delegated the work to the Chancellor, considered the keeper of the King's conscience.
Chancellor’s Court
Chancellors were learned but not trained in lawyering.
They decided disputes based on morals and personal ideas of right/wrong, not past precedents.
Chancellors relied on legal principles/maxims.
The Chancellor created the concept of trust, unrecognized by common law courts.
Equity courts corrected the limitations of common law courts.
In 1474, the Chancellor’s division/chancery was created separately from the king’s court.
A party approaching the chancery had to prove:
No remedy in common law court.
Not at fault (Impari delicto est conditio postur defenditis).
No delay.
Common law courts primarily provided compensation.
The chancellor issued new remedies like specific performance and injunction relief.
Specific Performance
Specific performance: Agreement between Palak and Smruthi for a house sale; Palak sells to Shivansh after receiving consideration from Smruthi.
Common law court's decision.
Chancellor's decision.
Injunction - Prohibition
Smruthi moves in and finds A and family, known for loud music, as neighbors.
What will the Common law do?
Chancellor's action.
Chancellor’s Division
In the 19th century, during Lord Elden's time, cases took a very long time to be decided.
Charles Dickens's Bleak House critiques England’s Court of Chancery for lengthy legal maneuvering.
By 1873, the courts were united by the creation of the Supreme Court.
Over time, equity and common law principles started to fuse.
Birth of Common Law and Birth of Equity
Common law was created to address the sickly child of justice, and equity was the supplement to nourish it.
Act of Settlement of 1701
With the Norman Conquest, the king became the fountainhead of justice, and judges exercised jurisdiction allowed by the emperor.
Judges were appointed and removable by the crown.
Parliament passed the Act of Settlement in June 1701 to resolve succession, confirming that no Catholic or person with a Catholic spouse could rule.
To preserve the Protestant Succession, the Crown would pass to a Protestant relation (Sophia, Electress of Hanover) if Anne and William had no more children.
Act of Settlement - 1701
Provisions:
If William II and Mary III died without heirs, the throne would go to Mary's next Protestant relative.
Went to James I's granddaughter, Sophia, Electress of Hannover (Germany).
Safeguards:
Ensured that no Catholic would take the throne.
The Act aimed to ensure a Protestant succession to the English throne.
George I inherited the throne due to the Act, despite over 50 Catholic claimants.
Other clauses: judges could only be removed by Parliament.
Judicial independence was secured by the Act of Settlement 1701, declaring judicial tenure to be during good behaviour, removable upon address of both Houses of Parliament.
Ensured royal successors would be Protestants.
The independence of the judiciary dates from 1701.
Article 7 ensures judges could be removed on an address to the Crown by both Houses of Parliament.
Act of Settlement of 1701 - Prior
Prior to 1701, some judges did not retain their positions after the sovereign's death, holding office at the pleasure of the parliament.
The new king could remove judges if he did not “deem fit.”
In 1720, an act stated judges should remain in force for 6 months after the king's death.
In 1767, it was finally declared that judges remained in power irrespective of the emperor's tenure.
Judges’ commissions be made quamdiu se bene gesserint (As long as he behaved well), and their salaries ascertained and established, removable upon address of both Houses of Parliament.
The provision relating to joint sitting of parliament is long-drawn and summoned only during matters of national importance.
This provision established the independence of the judges, and the royal pardon should not be pleaded to an impeachment.
This shifted the ideology from judges working during the pleasure of the crown.
The doctrine of pleasure is an archenemy to judicial independence.
Points to consider: “address” and “good behavior.”
Used successfully against Mr. Justice Robert Johnson for libel.
Independence was required for efficient court functioning.
Lord Chancellor
The Lord Chancellor is one of the most ancient offices of state, appointed by the Monarch on the Prime Minister's advice, and is a senior member of the Cabinet.
Heads the Ministry of Justice as the Secretary of State for Justice.
Previously acted as Speaker of the House of Lords and head of the judiciary.
Under the Constitutional Reform Act 2005, the Lord Chancellor ceased to be the Speaker of the Lords, replaced by the Lord Speaker.
The Lord Chief Justice is now head of the judiciary, and the Lord Chancellor may no longer sit as a judge.
Constitutional Reform Act 2005
Upholds the Rule of Law in England and Wales.
Officially recognized the principle of the Rule of Law in legislation.
S1: 'the Act does not…affect…the existing constitutional principle of the rule of law'
Emphasizes the importance of the Rule of Law in modern society
CRA 2005 removed the House of Lords from the judicial system and replaced it with the Supreme Court.
Since the CRA 2005…
Removed position as the head of the House of Lords
Can only appoint judges after recommendation from an independent panel called the Judicial Appointments Commission
Put in place by the CRA 2005
Still a high-ranking politician
What are the consequences? (1)
On the positive side:
The CRA 2005 moves the UK towards a system of separation of powers
Government control over judges should decrease
Separation of functions should allow for better specialization
Strengthens respect for the European Convention on Human Rights
Changes to the Lord Chancellor's position
CRA 2005 strengthens the independence of the judiciary.
Change to the role of the Lord Chancellor.
Before the CRA 2005 he had jobs in all 3 arms of the state.
Head of the House of Lords
Politician - senior in the Government
Head of the Judiciary
CRA 2005
The Constitutional Reforms Act, 2005 was passed with the aim of modifying the office of the lord chancellor, and the creation of the supreme court .
The Lord Chancellor, a cabinet member, was the head of the judiciary and sat in the House of Lords to hear appeal cases.
Also speaker of the House of Lords, the legislative chamber.
This conflicted with the doctrine of separation of powers, seen as incompatible with judicial independence.
CRA 2005
Judicial independence was widely discussed but not explicitly mentioned in any Act.
England does not follow a written constitution.
Independence has only been granted with reference to salary and removal of judges.
European Convention on Human Rights, 1998, revived the debate regarding the Independence of the Judiciary within England.
CRA 2005
The Lord Chancellor's involvement in all three organs of government contradicted Article 6 of the European Convention on Human Rights, ensuring a fair trial requiring judges to be independent of the government.
Part 2 of the Constitutional Reform Act 2005 modified the role of the Lord Chancellor; he or she need not be a member of the House of Lords, and no legal qualifications or experience is required.
CRA 2005
Article 6 (1) cast further doubt on the lord chancellor's concomitant exercise of both executive and judicial responsibilities.
These responsibilities entailed multiple roles: as cabinet minister; as head of a government department with responsibility for the courts and judicial appointments; as a judge, who, when sitting, presided over the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council; as head of the judiciary and protector of judicial independence; and as speaker in the legislative chamber of the House of Lords.
CRA 2005
The CRA intended to “redraw the relationship between the judiciary and the other branches of government and put it on a modern footing.”
It establishes a U.K. Supreme Court that assumes the jurisdiction of the Appellate Committee of the House of Lords and the Privy Council, removes the right of the “law lords” to sit in the legislative chamber of the House of Lords.
The judges who sit in the Supreme Court will no longer sit in the legislative chamber of the House of Lords. Indeed, the Council of Europe, in enforcing the European Convention on Human Rights, signalled to the government that if the Law Lords are allowed to participate in the law-making process, this will breach the doctrine of separation of powers.
Charter of 1726
This paved the way for the introduction of common law principles in India for the first time.
It also introduced various principles akin to modern courts in India.
Charter of 1726
In the 1720s, British business interests in India increased rapidly.
Consequently, it became necessary to create a court system in India to avoid submitting to local courts.
The company's directors petitioned King George I for a court system in Madras, Bombay, and Calcutta.
The Charter of 1726 was created, establishing corporations in Madras, Bombay, and Calcutta, comprising a Mayor and 9 Aldermen.
Charter of 1726
The Governor-in-council of each presidency town was empowered to make by-laws, rules, ordinances, etc.
The Mayor’s court was established in all major provinces in India.
The mayor and 3 aldermen were required to form a Quorum of the case.
The court was granted testamentary jurisdiction and power to issue letters to administrators of the Legal hairs of the deceased.
Upon receiving a written complaint, the court could issue summons to a defendant to appear before the court; if the defendant did not appear, it could arrest the person and present them before the court.
Charter of 1726
The defendant was also vested with the right to appeal before the court, which was the time the court had allowed the appeal jurisdiction for the first time.
The law of limitation was also fixed for the first time; the appeal had to be filed within 14 days from the date of judgment.
If the value of the suit was 100 pagodas, then the Governor-in-council was the final authority to appeal.
If the value of the suit was more than 1000, then the King’s council had the final say in the matter.
Justice of Peace was established in all the presidency towns; the Governor and 5 members would have criminal jurisdiction in courts.
It abolished the admirality courts in Madras.
It introduced a uniform justice machinery in three presidencies.
Charter of 1726
The courts established were directly from the authority of the King and not by the company.
The English law was imported into India by virtue of the Privy council.
The privy council adopted English principles whenever the Indian laws were silent.
The Doctrine of precedent was also adopted.
The Indian High Courts Act, 1861
The Parliamentary committee for the English East India Company sought to unite the sadar courts and the Supreme Court into one body.
The English East India company had amassed territories beyond the pre-existing presidencies such as Kittur, Sambalpur, Udaipur, Jhansi, Nagpur, Oudh.
The increase in territory also meant more territories to tax but there was malfunctioned government in place.
Interalia this also paved the way for the Indians to revolt against the opposing company rule.
The Indian High Courts Act, 1861
The Great Revolt of 1857 and the threat imposed demanded the British parliament to step in directly.
One of the foremost steps introduced was one single functional court for efficient governance in the territory of British India.
As a result, the Indian High Courts Act, 1861, was passed with the view to establishing High Courts in Calcutta, Madras, and Bombay. The Court derived its power from the Letters Patent.
Section 2 and 3 of the Act made provisions for the members of the judge, their qualifications, and their tenure.
Box Point
Letters patents (Latin: litterae patentes) are a type of legal instrument in the form of a published written order issued by a monarch, president, or other head of state, generally granting an office, right, monopoly, title, or status to a person or corporation.
It was a solution preferred when institutions like the High Courts were first introduced in India.
The Indian High Courts Act, 1861
Each High Court was empowered to have supervision over all courts subject to its appellate jurisdiction.
The High Court also had the power to call for returns, to transfer any suit or appeal from one court to another, or to make general rules.
Letters patent establishing High Courts:
Calcutta:
The letters patent empowered the High Court to enroll and remove advocates, vakeels and attorneys-in-law.
The Court had original jurisdiction and any court within Bengal was subject to its superintendence.
High Court of Judicature at Calcutta
The jurisdiction of the High Court was very similar to the erstwhile supreme court. It had jurisdiction in regard to
Estates of infants and Lunatics and relief of insolvency debtors at Calcutta.
It had jurisdiction over matrimonial matters
The High Court was vested with the power to formulate and create its own procedures for its functioning.
An appeal from the high Court could go to the privy council, provided the value of the suit was at least 10,000 rupees (pagoda).
The High Court was vested with the power to certify the appeal.
High Court of Judicature at Bombay and Madras High Court
The High Court of judicature at Bombay was established on 26th June 1862.
The letters Patent was similar to the High Court of Calcutta, the Bombay Court was established with similar powers.
This was a remarkable event as it paved way for uniform development of jurisprudence in the territory of Bombay.
The High Court currently has benches in Nagpur and Goa.
The High Court of judicature at Madras was also established by virtue of Letters Patent on 26th June 1862.
Advantages of Unification
It broke the 80-year-old confusion regarding the jurisdiction.
The jurisdiction of the crown’s court and sadar courts was vague and ill-defined.
The source from which both the institution derived their power were highly different also.
It also reminds us of the jurisdiction issues that existed in England in the 17th century between Common law courts and the Chancery court.
The number of courts decreased; the high court was vested with the power to have superintendence over the lower courts.
The efficiency of the judges improved and procedure was simplified.
High Courts Act, 1911
This Act empowered to establish court in any territory within the Indian dominion.
The Act also raised the number of judges in each High Court from sixteen to twenty.
It provided for the constitution, jurisdiction, and power of the High Court.
Each High Court was to have a chief and as many judges as appointed by the Crown.
The High Courts were vested with original, appellate, admirality jurisdiction.
The revenue matters were kept beyond the High Court. The HC Still retained the power of superintendence.
Establishing New Courts followed by GI Act, 1935
A HC was established in Patna by LP in 1916.
A HC was established in Lahore also.
The next in line was the passing of GI Act, 1935.
Number of judges: The Chief and as many judges as appointed by the crown.
Removal of judges: The judges could be appointed by Majesty. The judges were due to retire upon attaining the age of 60. The Judges could be removed on a earlier date on the grounds of misbehaviour or infirmity of body or mind.
GI Act of 1935
Qualification- The Barristers and advocates with a minimum standing of 10 years were eligible for appointment as judges.
It additionally made members of ICS also eligible for judgeship.
If a judge had occupied the position as a judge for three years, then the judge was entitled to be considered for a chief justice post.
Salaries- the salaries were fixed on the appointment of a judge. It went on to state that the salaries of the judge cannot be changed to their disadvantage.
Administrative control- The administrative control was placed in the provincial government.
1947-1950
The High Courts were established in various jurisdictions such as Punjab, Assam, orrisa, Mysore, Rajasthan, and Jammu and Kashmir.
Federal Court
Sir Hari Singh Gour was the first person who suggested the need for establishing an all-India Federal court in the place of the Privy council.
The reasons which supported Sir Hari Singh were as follows:
The judicial committee of the privy council was created as an advisory body and not necessarily as a redressal mechanism.
The other British colonies like Australia and SA also had their own Courts.
Thirdly, the expenses that were associated with the appeals.
Fourthly, the judicial committee did not have the expertise to deal with local laws.
Fifthly, the time taken by the Privy council to settle a matter was long.
Sixthly, the privy council did not entertain a lot of appeals from India.
Federal Court
His resolution did not get much attention until the 1930s.
The Government of India Act, 1935 changed the structure of India from “unitary” to “federal.”
The GI Act, 1935, introduced Section 200 for establishing a Federal court in India.
The court was inaugurated on 1st October 1937 and appointed Sir Maurice Gawyer as its Chief justice and two pusine judges, Muhammad Sulaiman and M.R. Jaikar.
In practice, the privy council was still the top most court, but a body was created in between HC and PC.
Federal Court
The number of judges had to be chief justice and not more than 6 judges.
They had to be appointed by the King.
The Hon’ble judges were due to retire at 65.
A judge could be removed from judgeship at an earlier date on the grounds of bodily/mental infirmity and could also be removed on grounds of misbehavior.
Qualification: Five years of experience as a judge of HC, A barrister, or an Advocate for 10 years.
For a chief justice, he/she must have been a barrister/ advocate for 10 years.
Federal Court and its limitations
Jurisdiction of the court: original, Appellate, and Advisory jurisdiction.
Subsequent to Independence, the Supreme Court became the final court as the Abolition of Privy council jurisdiction Act was passed in 1949.
The Federal court was replaced by the Supreme court on 26th Jan 1950.
The original jurisdiction of the court was limited in nature; it could entertain appeals only between the dominions or between the union and dominion.
It could not entertain any litigation brought by an individual.
The Federal court did not have the power to enforce its judgment.
Appellate & Advisory Jurisdiction
The federal court had Appellate jurisdiction in constitutional matters alone until 1948.
It was extended to civil and criminal cases subsequent to that.
The Federal court could not entertain an appeal if there was no certificate from High Courts.
Advisory jurisdiction:
Form of judgment: the federal Court could not enforce its judgments; it had to ask the HC to replace its order.
The judgment of the Federal court was binding on all lower courts.
Supreme Court
The Supreme court of India wields powers such as Original, Appeal, review, and advisory jurisdiction.
The passage of events subsequent to the Indian independence played a predominant role in establishing the SC. The need was felt by our founding fathers to establish an independent supreme court within the territory of India.
The carefully planned Institution wields greater power than its predecessor (Federal Court) and its counterparts from any other nation.
Constitution
Art. 124 provides for the appointment of judges to the Supreme Court.
At the time of its creation, it had a sanctioned strength of a CJI and 7 judges. The numbers have undergone a sea change, and the Supreme court currently has a sanctioned strength of 34 judges.
The president of India appoints judges, while appointing the president has to consult with the CJI. It is customary that the senior most judge of the Supreme court is appointed as the next CJI.
Qualification: He must have been a judge of a HC for 5 years or an Advocate for 10 years, or he is a distinguished jurist in the eyes of president.
Constitution
Removal: A minimum of 100 members of Lok Sabha may give a signed notice to the speaker,
Or a minimum of 50 members of Rajya Sabha may give in writing to the chairman,
Then an inquiry committee has to be formed with the speaker and chairman of both the houses.
Then the report has to be accepted by a majority of the total membership of the house.
A majority of not less than two-thirds of members present and voting.
The judge of a supreme court cannot practice after retirement.
Original Jurisdiction
Court can exercise original jurisdiction in matters between states or between a union and a state.
By virtue of Art.32 the SC can also invoke writ jurisdiction to protect the rights of citizens. However, the writ cannot be passed against a private individual, it has to be passed against the state.
Appeal jurisdiction- Art. 132 and 136.
Advisory: It is a mechanism that is available to the executive to check the validity of a bill before its enactment.
Review jurisdiction
Supreme court enforcement order, 1954
Can accept PIL,
Can appoint Amicus curiae.
Collegium v. NJAC
The Collegium was criticized for its lack of transparency.
The mechanism by which the judges are being appointed had raised pivotal questions relating to the institution.
It is worthy to recall that under the Collegium system, the president appoints the judges after consulting the CJI and the senior-most judges of the Court.
NJAC was mooted as the 99th Amendment to the Indian constitution; it was successfully passed in the parliament, and the president also gave his assent to the same.
NJAC: National Judicial Appointment Commission
The members of NJAC: CJI, two senior-most judges, law minister, and two eminent people.
The eminent person is appointed by the prime minister, leader of the opposition, and CJI.
The Act was silent on the qualification of “eminent person.” However, it stated that one of the members should either be a woman or a member belonging to the backward class.
The Chief justice and the two judges can veto any name that is being proposed for appointment. Once a proposal is vetoed, it cannot be reviewed. However, they require the consent of the members to successfully pass a person.
The 99th Amendment to the Constitution was challenged before the Court in Supreme Court Advocates on Record V. UOI.
The argument was primarily based on Judicial independence and judicial primacy that has been granted to the judges by virtue of the judges' case in India.
NJAC
Judicial independence: Judicial independence is one of the imperative features of our constitution, and it is even considered as a part of the basic structure without which our constitution would crumble.
It was argued that the interference from the other branches was antithetical to the judicial independence, which has been guaranteed by the founding fathers of the Constitution.
The concept of judicial primacy has also developed over the period of years.
The judgment agreed to the unconstitutional nature of NJAC and duly struck it down.