Introduction
The Act of Settlement 1781 was passed by the British Parliament on 5th July 1781 to remove the defects of Regulating Act of 1773. The key provision of this Act was to demarcate the relations between the Supreme Court and the Governor General in Council.
Necessity of the passing of the Act of Settlement of 1781
The three historic cases ie, the Patna case, Cossijurah Case and Kamaluddeen case necessitated radical changes in the working of the Supreme Court and the Supreme Council and re statement of their functions and powers. The reasons for passing Act are-
1. The principal British inhabitants of Calcutta sent a signed petition to the British Parliament against the exercise of powers by the Supreme Court.
2. The Governor and members of the Council also sent a separate petition for reviewing the working of the Supreme Court. As a result of this, the Parliament enacted the Act of Settlement in 1781 which settled many controversial issues arising out of jurisdictional conflicts between the Supreme Court and the Supreme Council as also the Company’s Courts in India.
3. The conflict between the Supreme Court and Supreme Council reached its climax during 1779-80. The Supreme Council had already submitted a petition against the working of the Supreme Court in Bengal to the British Parliament consequent to the decisions in Patna case and Cossijurah case.
4. Similar petitions were also sent by the Company’s servants, Zamindar’s and principal British subjects of Calcutta against the Supreme Court. Taking into accounts the various reasons noted above the Parliament, therefore, appointed a Parliamentary Committee to enquire into the matter and report to the Parliament. The Committee submitted its Report as a result of which the Parliament passed the act of Settlement in 1781. The Act was passed, not because the Supreme Court had exceeded its jurisdiction but because it had been found difficult to exercise its power without coming into conflict with the Provincial Courts and the Government i.e, The Supreme Council. A notable feature of the Act was that almost on all points of dispute, it took the side of the Supreme Council and made the Government completely immune the judicial control of the Supreme Court.
Object of the Act of Settlement of 1781
It was passed to explain and amend the Regulating Act of 1773, and for the relief of certain persons imprisoned at Calcutta under the judgment of the Supreme Court and also for indemnifying the Governor-General and Council and all officers who had acted under their orders in undue resistance made to the process of the Supreme Court. It further stated that lawful government of the Provinces of Bengal, Bihar and Orissa should be supported and the revenue thereof should be collected with certainty, and the usages, rights and privileges of the inhabitants should be protected.
Provisions of the Act of 1781
The Act of Settlement of 1781 tried to reconcile the differences between the Supreme Court and Supreme Council and ensure harmony in the working of these two vital organs of the Government. The main provisions of the Act are as follows –
1. To keep Governor-General and Council beyond the jurisdiction of Supreme Court – The Act provided that the Governor-General and Council were completely immune from the jurisdiction of the Supreme Court for the orders passed or acts done by them in their public capacity. It further contained that the persons who acted under the written orders of the Governor-General and Council would not be liable either civilly or criminally for their acts. The British Subjects were, however, held to be within the Court’s jurisdiction.
2. To keep the collection of revenue matters beyond the jurisdiction of Supreme Court – The Supreme Court also had no jurisdiction in any matter concerning the collection of revenue or an act done in obedience of the Regulations of the Governor-General and Council for the Collection of revenue.
3. To keep persons possessing any interest over land and rent beyond the jurisdiction of Supreme Court -S. 9 of the Act of Settlement provided that the persons who possessed any interest or control over lands and rents into the Provinces of Bengal, Bihar and Orissa were immune from the jurisdiction of the Supreme Court. Thus, this provision of the Act virtually reversed the Supreme Court’s decision in Patna Case.
4. To exclude the persons under employment of Company from the jurisdiction of Supreme Court – The Act provided that the persons who were under the employment of the Company or the Governor-General and Council were excluded from the jurisdiction of the Supreme Court in matters relating to inheritances, succession, contracts except for the wrongs of trespasses. These persons were within the jurisdiction of the Company’s Mofussil Courts in matters relating to civil litigation, while they were under the jurisdiction of the Supreme Court only for criminal trials.
5. To immune the judicial officers from the jurisdiction of the Supreme Court for their judicial actions – The Act provided that no action could be brought against any judicial officer in the Supreme Court for the acts done by him in the exercise of his judicial functions. It provided that in order to initiate an action against a judicial officer for corruption, a written notice was required to be served on him stating fully the cause of complaint. The period of notice could vary from one to three months. Such judicial officer could not be arrested or admitted to bail until he failed to appear after the service of the notice.
6. British Parliament through the Settlement Ad, 1781 for the first time gave recognition to the Civil and Criminal jurisdiction of the Provincial Courts existing independently of the Supreme Court. The Sadar Diwani Adalat consisting of the Governor-General and Council was conferred jurisdiction to hear appeals from the Mofussil Diwani Adalat in civil cases. This court was constituted as a Court of Records and its decision of civil cases upto £ 5000/- was final and if the value exceeded £ 5000/- an appeal lay to the King-in-Council. Thus, the Act of Settlement brought the Sadar Diwani Adalat at par with the Supreme Court deriving its authority from the Crown and not from the Company, The Act also authorised the Sadar Diwani Adalat to exercise jurisdiction in all revenue cases.
7. To preserve the religious and civil rights of natives – The Act of Settlement specifically provided that civil and religious usages of the natives and their ancient rites were to be preserved and safeguarded. Thus, the Hindus and Mohammedans residing in Calcutta were also to be governed by their personal laws in civil matters like those living in Mofussil territories.
8. To Empower the Governor-General and Council to frame rules and regulations – The Act empowered the Governor-General and Council to frame rules and regulations for conducting civil, suits and criminal trials in the Provincial Councils. The copies of the such regulations were to be sent to the Court of Directors and the Secretary of State within six months of their passage. The King-in-Council could disallow such regulations within two years. While framing such rules and regulations due regard was to be given to the religious usages and customs of the natives.
9. To enlarge the territorial jurisdiction of Governor-General and Council regarding a legislation – Prior to the Act of Settlement 1781, the Governor-General and Council already had the power to enact rules and regulations only for Calcutta under the Regulating Act, 1773. But, with the passing of the Settlement Act the Governor-General and Council could frame such rules and regulations for the territories of Bengal, Bihar and Orissa also.
10. To release the accused of Patna case – This Act directed that all the defendants in Patna case should be released from the prison on security being given by the Governor-General and Council for payment of damages. The claims of Nadirah Begum were also to be indemnified by the Company. The defendants were also authorised by the Act to appeal to the King-in-Council despite the appeal period having been already expired. The Governor-General and Council, Advocate-General and all persons who acted under their orders from January 1; 1779 to January 1, 1780 were thereby indemnified, discharged and saved from any action, suit or prosecution etc. on account of the said disobedience and resistance to the execution of the order of the Supreme Court.
11. Judicial Officers remained subject to the jurisdiction of Supreme Court – The Act, however, did not exempt the judicial officers of the Company from action for corrupt practices. They could be tried by the Supreme Court for corruption, bribery etc., after being served due notice about such action. But no such officer could be arrested or sent to jail in such a case until he refused to appear before the Court to answer after notice had been served upon him.
The Act of Settlement expressly laid down that the Supreme Court shall have jurisdiction over Indian inhabitants of Calcutta but their cases relating to inheritance, succession to land, rent, goods or contract, etc. between themselves shall be decided in accordance with their personal law i.e., Hindu law in case of Hindus and Mohammedan law in case of Muslims. However, where the parties belonged to different communities, then the case shall be decided on the basis of the law of the defendant.
How far the Act could remove the demerits which cropped in by the implementation of Regulating Act 1773
The Act was passed to remove the defects of the Regulating Act, particularly the uncertainty of the jurisdiction of the Supreme Court and its relations with the Supreme Council and the Company’s Courts. Though the jurisdiction and powers of the Supreme Court were considerably curtailed by the Settlement Act, but it earned greater prestige, authority and regard than ever before even with this diminished authority it served the cause of justice with dignity and honour for about eighty years. It had started in a very hostile atmosphere, but in course of time was hailed as a great institution, both by the Europeans and Indians. The English lawyers laid the foundation of a compact system of Anglo-Indian jurisprudence during the next eight decades of the existence of the Supreme Court. The Court functioned so well that it won appreciation from both, the government and the people and as a result of this similar Courts were established in Bombay and madras also.
Inspite of the above noted achievements, the Act of settlement suffered from certain grave defects. It made the Governor-General and Council Supreme Court arbitrary thus jeopardising the introduction of rule of law and independence of judiciary in India. This made the Executive Council of the Government all in all, beyond the judicial control. The Act did not specify whether the Provincial Courts were to have concurrent jurisdiction with the Supreme Court or not and if it had exclusive jurisdiction, then under what restrictions it was to be exercised. Cowell has rightly pointed out, “the Act perpetuated the distinction between the Presidency towns and Mofussils which originated due to Moghul Empire and the Company’s factories.”
Conclusion
Thus, from all that what is said above it can rightly be concluded that the Act of 1781 was substantially in favour of the council and against the crown in all points.
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Questions
Discuss the provisions of the Act of Settlement 1781. Or
What was the necessity of passing the Act of Settlement ? Discuss its provisions in short. How far this Act could remore the demerits which cropped in by the implementation of Regulating Act, 1773. Or
“The Act of 1781 was substantially in favour of the council and against the crown in all points.” Comment.
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