The East India Company became a dominant political power in India, by the end of the 18th century. While the Company’s income was decreasing, its servants were becoming wealthier day-by-day. The British Parliament, thus, passed a Regulating Act which went a long way in subjecting Company’s servants to the control of British Parliament. The Act resulted in a lot of improvement of the Company’s administration in India and induced confidence and goodwill in the natives.
The Regulating Act 1773
The Regulating Act sought to achieve the following objectives
(i) Reforms in the Constitution of the Company.
(ii) Reform in the Company’s governments (i.e. administration) in India.
(iii) To provide remedies against the illegalities and oppression committed by the Company’s servants in India.
The major features of the Act are as follows:-
(i) Governor-General and Council – The status of Governor and Council raised to that of Governor-General and Council, with Governor-General and four Councillors. The decisions of the to buy Council were taken by majority.
(ii) Powers and duties of Council – The entire military and civil administration (including revenue matter) was vested in the Governor-General and Council, who could also enact legislations (rules, regulations, etc.) for the better governance. The power was, however, subject to the following conditions-rules should be in confirmity with English law, rules were not valid and effective unless registered and published in the Supreme Court, rules could be set aside or repealed by King-in-Council, etc.
(iii) Control of Council on Madras and Bombay – The government of the Presidencies of Madras and Bombay were put under the superintendence and control of the Governor-General and Council.
(iv) The Supreme Court – The Act made detailed provisions for the establishment of a Supreme Court at Calcutta as the existing arrangement does not sufficiently provide for the due administration of justice.
(v) The Governor-General, Councillors, Chief Justice and other judges of Supreme Court were prohibited from accepting any gift, present, donation, or reward from any person, and to indulge in private trade.
(vi) Governor-General and Councillors, Judges, Company’s servants band British subjects could be tried in the King’s Bench in England if they committed any crime or offence against the Act, or His Majesty’s subjects or inhabitants of India.
The Supreme Court at Calcutta
Composition – The Supreme Court consisted of a Chief Justice and three other judges, who were to be barristers of England of not less than five years standing. The judges were to be appointed by the Crown and held office during Crown’s pleasure. Sir Impey was the Chief Justice of the Supreme Court.
Jurisdiction – The Supreme Court had following five kinds of jurisdiction
(i) Civil jurisdiction (Original jurisdiction) – The civil jurisdiction of the court was of two kinds: territorial and personal. The court had a territorial jurisdiction with respect to Calcutta and therefore civil matters of all kinds concerning all persons arising within that area fell within its jurisdiction. Beyond Calcutta, and within the provinces of Bengal, Bihar and Orissa, the court had only personal jurisdiction and therefore a suit could be filed against following categories of persons e.g. East India Company, Mayor and Aldermen of Calcutta, the Crown’s subjects and Company’s servants. The Supreme Court could also have jurisdiction over the natives residing in those areas in case they agreed in writing to submit to the jurisdiction of court (where the value of suit was over Rs. 500);
(ii) Equity jurisdiction – The court had the same equity jurisdiction as the High Court of Chancery in Britain had at that time. It could issue summons and compel obedience to its orders and decrees.
(iii) Criminal jurisdiction – The criminal jurisdiction of the court extended to all British subjects residing in Calcutta and within the territory of Bengal, Bihar and Orissa. The court was empowered to inflict any punishment. The court had no jurisdiction to try the Governor-General and Council or the judges of Supreme Court except in cases of treason or felony.
(iv) Ecclesiastical jurisdiction – The court had the power to grant probates of will and testaments of British subjects dying in India.
(v) Admiralty jurisdiction – All maritime crimes committed upon the high seas could be tried by the court.
Other powers – The Supreme Court supervised the inferior courts of the Company and appeal to the Supreme Court lied from the decisions of lower courts The Supreme Court was a Court of Record and had the power to punish for its contempt. The judges of the Supreme Court were placed at par with judges of the King’s Bench, thus they were empowered to issue various writs- habeas corpus, mandamus, etc The Supreme Court was also empowered to grant reprieve or suspend the execution of the capital punishment in certain cases on mercy petitions.
Appeals – Appeals from the decisions of the Supreme Court could be taken to the King-in-Council in all civil cases valued at 1000 pagodas (Rs. 3000) or more. In criminal cases, the appeals could be taken to the King- in-Council only if the Supreme Court agreed to grant permission to do so.
Critical appraisal of the working of Supreme Court
The establishment of the Supreme Court could be said to be the beginning of effective and independent judiciary in India. The Supreme Court laid down the foundations of modern legal system in India. Previously, there was no independent judiciary in existence as Company’s servants administered justice according to their common sense and were busy all the time in Company’s work and had no time to attend to legal matters.
Some of the merits of the Supreme Court were-
(i), The court derived its authority from the Crown, thus fully independent of the Company’s government in India
(ii) The court had complete jurisdiction over civil and criminal cases.
(iii) The Supreme Court was the first British Court in India consisting of lawyer judges.
(iv) Subjection of all British subjects including Company’s servants to the jurisdiction of the Supreme Court ensured rule of law. A check or control on the Company’s officials was provided for the first time.
(v) The Supreme Court was empowered to enrol advocates and attorneys. This was of great help to the litigants because now they could be assisted by persons who knew law.
(vi) For the first time in the history of Indian legal system that a court was given the power to issue writs.
(vii) Previously, the executive had controlled the judiciary. The Supreme Court enabled the judiciary to control the executive.
However, the working of the Supreme Court was not free from difficulties. There were several defects in it (viz. The Regulating Act), which are as follows:-
(i) The relationship between the Governor-General and Council and the Supreme Court was not clearly defined. The only provision made was that the Governor-General and Council shall not be liable before the Supreme Court except for treason and felony. It did not say what would happen in case of other offences. While the court would like to entertain the matters against the Governor-General and Council, the latter would like to reject the authority of the court. Thus, the Governor-General and Council asserted its independence in revenue matters but the court maintained that it would interfere in all cases of oppression in the collection of land revenue.
(ii) The relationship of the Adalats in Mofussil areas and of the Supreme Court was not clearly defined. Whether these court were subordinate to the Supreme Court or not? The Supreme
Court began to act on the complaint of corruption, etc. against the judges of these courts as happened in the Patna case.
(iii) The jurisdiction of the Supreme Court was not clearly defined with respect to territory outside the Presidency limits of Calcutta. The court would issue summons to witnesses and other connected persons to appear before the court even when they lived outside the Presidency limits and believed that they were not subject to the jurisdiction of Supreme Court.
Further, if any proceeding was started by anyone against a native he had to go before the Supreme Court to plead the absence of jurisdiction. For this, he had to travel all the way to Calcutta. Still further, a defendant could be arrested and detained till the court decided the matter of jurisdiction (Cossijurah case).
(iv) Vague expressions were used in the Act and the Charter, e.g. ‘British subjects’, ‘Subjects of His Majesty’, ‘persons employed directly or indirectly in the service of the Company’, etc. Thus, the revenue officials including zamindars, kazis of Adalats, etc. were held by the Supreme Court to be the persons indirectly in the service of the Company, and thus liable before the Supreme Court.
(v) The Act did not make any clear provision about the law which the Supreme Court had to apply in the proceedings before it. to be used much of English law was a pale yet it was not clear as to how for native.
The position of natives living within the presidency limits of Calcutta was not clear. Whether they shall be governed by English law or by their own law in the disputes among themselves was not clearly indicated.
(vi) The Supreme Court applied the law of England in criminal matters which was very harsh and severe. For minor offence, a person could be hanged. The Indians were not accustomed to it, as in criminal matters they were generally governed by the Muslim law (Raja Nand Kumar case).
Illustrative Cases
How serious were the difficulties noted above may be illustrated with reference to the following cases.
Raja Nand Kumar Case (1775)
Raja Nand Kumar, an influential man in Bengal, brought some charges of corruption and bribery against Warren Hastings before the Council.
Warren Hastings was very much annoyed at this. He was found guilty of the charges and directed by the majority of the Council to remit to the treasury the amounts i.e. the bribe. A few days later, one Mohan Parshad filed certain charges of forgery against Raja Nand Kumar in the Supreme Court. The Raja was arrested and brought to trial at the Supreme Court. The court found the Raja guilty of having forged certain documents and was sentenced to death under an Act enacted by British Parliament in 1728. The sentence was duly executed.
Two broad legal issues arose in the case were: (i) Whether Nand Kumar was under the jurisdiction of the Supreme Court, (ii) Whether the Act of British Parliament which made forgery an offence punishable with death and under which Nand Kumar was indicted and tried, extended to India?
The first issue was based on the pleas that Nand Kumar was not a resident of Calcutta, in 1770 when the offence was alleged to have been committed and that before the advent of the Supreme Court all Indians were tried by the Faujdari Adalats and accordingly Nand Kumar should be tried by that court. The Supreme Court not being, convinced by these pleas
the issue of jurisdiction had to be withdrawn. Regarding the second issue, the Supreme Court presumed that British law was extended to Calcutta because the city assumed a commercial character.
Nand Kumar’s trial had always been looked upon with suspicion. The circumstances in which the case was started, tried and executed has led some historians to call it a “judicial murder”. The whole trial was vitiated by a criminal disregard of all principles of justice. The Supreme Court at Calcutta though established with the avowed object of protecting the Indians against the oppressive activities of servants of the Company, infact oppressed the Indians further by this trial. The way the trial was conducted raised strong doubts about the Supreme Court’s impartiality and bona fides.
First, the defence witnesses were very severely cross-examined by the judges themselves as a result of which the defence collapsed. Secondly, after convicting Nand Kumar, the court rejected the application for grant of leave to appeal to the King-in- Council. Thirdly, the court had power to reprieve and suspend the execution of a death sentence and recommend the case for mercy to His Majesty. The court did not exercise this power in favour of Nand Kumar though there could not perhaps be a stronger case depriving exercise of the court’s power. Fourthly, it has been conceded by all writers on Indian legal system that the crime of forgery for which the Raja was tried was never extended to Calcutta. Fifthly, the Raja was not a resident of Calcutta, and therefore he did not come under the jurisdiction of the Supreme Court. Thus the Supreme Court in collusion with the Governor-General exploited and misused the vagueness in the language of the Charter. It has been established that Sir Impey (Chief Justice) showed extra interest in the trial, and hanged the Raja just to please his childhood friend Warren Hastings.
The court also seems to have been carried away by the desire to teach Indians that English law did not make any distinction between a rich Brahmin like Nank Kumar and any other person.
The Patna Case (1777-79)
One Shahbaz Beg, a soldier in the Company’s army, had no issue and so he called his nephew Bahadur Beg from Kabul to live with him. He expressed a desire to adopt Bahadur Beg and to hand over his property to him. But before he could do so, he died in 1776. Thereafter, a struggle ensued for property between Bahadur Beg and Shahbaz’s widow Nadira Begum. The Begum claimed entire property on the basis of gift said to have been executed in her favour by her late husband. Bahadur Beg claimed the entire property as the adopted son of the deceased. He filed a suit against the Begum in the Patna Provincial Council which also functioned as a Diwani Court for the town.
The Patna Council remitted the entire case to its law officers kazis and Muftis and required them to make an inventory of property of the deceased, to collect the property and seal it, and according to “ascertained facts and legal justice” to transmit to the Council a written report specifying the shares of parties. Under the Regulations then prevailing, the law officers
were neither to perform any executive functions nor were they to concern themselves with deciding the questions of fact, their only function was to expound the law applicable to the facts of the case.
The law officers locked and sealed the house of the deceased. The widow of the deceased was insulted and humiliated to such an extent that she left the house and took refuge in a mosque. They rejected her claim holding that gift deeds were forged. As Muslim law does not recognise adoption, Bahadur Beg’s claim was also rejected. The deceased’s property was thus to be divided according to the Muslim law of intestate succession. The widow approached the Supreme Court and filed an action against Bahadur Beg, the kazi and mufti for assault, breaking and entering her house and taking away her property, and claimed damages amounting to Rs. 6 lakhs. Bahadur Beg, Kazi and Muftis were arrested and brought from Patna to Calcutta and were lodged in prison.
The legal issues raised in trial, which started in November 1978, were: (i) Whether Bahadur Beg, who lived outside Calcutta was subject to the jurisdiction of Supreme Court, and (ii) Whether the law officers could be prosecuted for acts done in their judicial capacity?
On the first issue, the court said that Bahadur Beg was a farmer of land revenue and he was not different from the revenue Collector and therefore was ‘directly or indirectly in the services of the Company’. On the second issue, the court held that although the Patna Council was a legally constituted court having jurisdiction to decide the civil disputes between the Indians, it had no jurisdiction to delegate its functions to the law officers, the Kazi and Muftis.
The court criticised the manner in which the kazi and muftis had acted for ascertaining facts. All the proceedings in the Council were ex parte without any notice being given to the Begum. No regular trial was held and witnesses had not been examined on oath. Thus, the law officers were tried not for what they had done in the discharge of the their regular functions, but for something outside thereto and the court had an undoubted jurisdiction over the Company’s servants.
The Supreme Court awarded damages of Rs. 3 lakhs to the widow which was quite inproportionate. The Patna case brought to light the inherent defects in the Company’s judicial system (i.e. Adalats and Councils). Also, the case involved the question of the Supreme Court jurisdiction and its relationship with the officials of the Adalats. A lesson was perhaps learnt, which became the basis of further reforms in administration of justice carried out later.
Cossijurah Case (1779)
One Cossinaut Baboo filed a debt suit in the Supreme Court against a zamindar, the Rajah of Cossijurah. In his affidavit, he stated that Rajah was in service of company as a revenue collector, thus subjected to the jurisdiction of the Supreme Court. The Supreme Court directed the Rajah to appear before the court. Meanwhile, Governor-General and Council issued instructions to all the farmers and landholders that they were not subject to the jurisdiction of Supreme Court.
The Rajah had gone into hiding to avoid the process of the Supreme Court. The court sent sheriff and armed constables to arrest Rajah and to confiscate his property. The Governor-General and Council despatched a much larger armed force to prevent it and succeeded.
Cossinaut then moved the court for a writ against the guilty officers including Governor-General for having committed the contempt of court. The Councillors first appeared through their counsel and pleaded that their acts were done in their public capacity. But later they decided to withdraw appearance and conveyed to the court that the court should not proceed with the case. Thus a deadlock was created, the Councillors will not appear before the court and the court could not enforce its orders against them.
Meanwhile, the Governal-General and Council issued instructions to all the zamindars, landholders and the persons residing outside Calcutta not to pay any attention to the process of the court and that in case the Supreme Court persisted in issuing writs against them, the Council would protect them. Suddenly on 12 March, 1780, Cossinaut withdrew his suits against the Rajah and the Councillors.
This show-down between the Supreme Court and the Council brought out the inherent weaknesses and defects in the Regulating Act, 1773, which did not specify the areas and the persons which were under the jurisdiction of the Supreme Court. The case proved to be a “last straw” in relations between the court and the Company’s Government. As a consequence of the Cossijurah case, (i) the jurisdiction of the Supreme Court was reduced to the territorial limits of Calcutta Presidency, (ii) the dignity of Supreme Court was adversely affected, (iii) a moderate improvement was made in the Company’s court to impress that not only the Supreme Court but other court also administered justice, and (iv) the Settlement Act of 1781 was passed to remove the defects in the working of the Supreme Court. tel
Act of Settlement 1781
The Supreme Court had aroused the dissatisfaction of all persons whether they were natives or they were the Company’s servants. The Act of Settlement, 1781, was intended to remove some of the most obvious defects in the working of Supreme Court at Calcutta. The changes introduced by the Act are as follows:-
(i) Governor-General and Council were excluded from the jurisdiction of the Supreme Court for all things done or ordered by them in their public capacity. The Act indemnified them for
their acts in Cossijurah case.
(ii) Revenue matters were taken out of the jurisdiction of the Supreme Court. The land owners, farmer, etc. were expressly excluded from the Supreme Court’s jurisdiction.
(iii) No person employed by the Company or by any British subject was to be liable to the jurisdiction of Supreme Court in matters of inheritance, succession or contract unless such person agreed in writing to refer any matter to the Supreme Court.
(iv), In cases involving the natives, the personal laws of the natives should be applied. Where the dispute arose between natives of two different communities i.e. Hindus and Muslims, then the law of the defendant would be applied.
(v) The Sadar Diwani Adalat (established under 1772 Plan) was declared as a Court of Record having final jurisdiction in civil matters, with provision for appeal to King-in-Council. The Adalat was in no way subordinate to the Supreme-Court. The revenue matter were placed under the jurisdiction of adalats.
(vi) The officers of native courts i.e. adalats were not liable to the jurisdiction of the Supreme Court for any act done in their judicial capacity. However, if there were charges of corruption
against them, then the Supreme Court proceed against them after giving a 1-3 month’s notice.
(vii) The Supreme Court was authorised to make procedural rules, regulations, etc. in accordance with the needs of the people.
(viii) The Act gave extensive legislative powers to the Governor- General and Council for the purpose of making laws for Bengal, and Bihar and Orissa. They could frame regulations for the provincial courts and Councils.
The Supreme Court on the one hand and the Company’s Courts on the other hand worked smoothly after the passing of the Act. However, the Act of 1781 was not free from difficulties (i) Ecclesiastical jurisdiction of the Supreme Court with respect to Indians was not clear to the extent whether the court had the power to issue the instruments of probation or administration in the case of a Hindu or Muslim; (ii) The jurisdiction of the Supreme Court applied to all inhabitants of Calcutta. Who was an inhabitant of Calcutta was not defined in the Act, thus, a person coming to Calcutta even for a short time of 24 hours was held to be an inhabitant of Calcutta; and, (iii) The Supreme Court issued writs against the decisions of court in Mofussil areas. The exercise of such powers was opposed by the courts as well as the Governments.
Supreme Courts at Madras and Bombay
In Madras and Bombay, the Recorder’s Courts consisting of one Recorder (a barrister), the Mayor and 3 Aldermen, were functioning which had almost the similar jurisdiction as the Supreme Court of Calcutta had.
The Acts of 1800 and 1823 abolished the existing Recorder’s Courts and established the Supreme Courts at Madras and Bombay respectively. The powers, functions and jurisdiction of these two Supreme Courts were similar to those of the Supreme Court at Calcutta.
Dual judicial system
By 1823, the judicial system in the country had become uniform with the Adalat System in the Mofussil areas and the Supreme Court at Presidency towns. The system worked well and generated a good amount of confidence in the minds of the natives and went a long way in checking the malpractices of the Company and in ensuring impartial justice. However, still the entire judicial system worked to the advantage of the British. The Supreme Courts functioned till 1862 when under the Indian High Courts Act of 1861, these were replaced by High Courts.
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