Balakumar Rajendran, Student of Law, VIT Law School, Chennai
Group of traders from England got monopoly status to trade in East India and landed at Sultanati, India. The company acquired constitution, powers and privileges from the chatter of 1600 of Queen Elizabeth. The company’s ships arrived to India at the port of Surat, in 1608, got permission from the Mughal Emperor, Jahangir, to start a factory at Surat. To enforce obedience in all Englishmen resident and to punish them according to English laws companies power’s were further expanded in the charter of 1661. The administrative and judicial arrangements at Surat Factory were taken care by the president and council. The empowerment of The British East India Company in Culcutta was proved when it acquired the Zamindari Rights from Emperor Aurangzeb in the year 1698 the status of Culcutta was raised to Presidency an English officer was appointed to act as a Zamindar named, Collector. The early centers of British powers in India were three presidency towns of Madras, Bombay and Calcutta ((See M.P.Jain’s legal and constitutional history, seventh edition. Pg.15)). In 1678, the court of the Governor and Council was designated as High Court of Judicature ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg.48(second phase:1678-1683).))and established Admiralty courts in India try maritime cases by the Chater of 1683. In Bombay by the New Judicial Plan of 1672 The English Law’s were introduced into Bombay abolishing totally the laws and customs of the Portuguese while this was the situation in Bombay in Madras The company issued a Chater in 1726 which authorized the company to create a Corporation of Madras and established a Mayor’s court ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg.52(establishment of corporation in madras: the mayor’s court).)).
Reasons behind 1773 Act
In Culcutta, There was a lack of proper judicial administration, there was no proper central authority, there was corruption amongst the servants of the company, added to it the company’s defeat in the hands of Hyder Ali lead to a terrible famine in Bengal. The company’s servant exploited the wealth and returned back to England and no one was interested in the welfare of the nation. The newly enriched ex-servants of the company used the wealth to purchase seats at the house of the commons and purchased the shares of the company and thus landed the atrocities ((See M.P.Jain’s Legal and constitutional history. Pg.74)). Parliament had to intervene when there was a financial embarrassment in the company; company had to approach the British government for a big loan. The British government appointed two committees a secret and a select committee to check the affairs of the company, for which the loan can be granted. The committee in a report exposed the defects and deficiencies prevailing in the existing structure ((See Roberts, history of British India, 182 (1915).)). To remove the evils of the prevailing system the parliament enacted the Regulating act of 1773. British Parliament took interest over the East India because a realization was dawning on them that company was no longer a mere commercial body, but had assumed the political and territorial power of India ((See M.P.Jain’s Legal and constitutional history. Pg.74)).
Provisions of the Regulating Act
The Regulating act effected two major changes in the constitution of the company.
- The term of the directors of the company were increased from one year to four years.
- Voting power was restricted to those who held stock worth 1000 pound or more.
The term of the directors were increased because it was expected that it would give a grip over the company’s affairs to the directors and by increasing the qualification of the voting power there may be quality shareholders in the company ((See M.P. Jain’s Legal and constitutional history. Pg.75)). The act tightened the British power over the company in several ways. In order to assert parliament’s control over the company directors were required to place regularly all corresponding to the concerned authorities of secretary and treasury.
A Governor General and four council members were appointed for the presidency of Calcutta. Three in four of the council members were Englishmen so they are having no vested interest over India and will discharge their duties sincerely. They will hold the office for a term of five years. They were given all powers to extend the territorial acquisition in India. Madras and Bombay were also placed under the supervision of the Governor General ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg. 109-110)). Warren Hastings was appointed as the first Governor General.
Establishment of Supreme Court of Judicature
Section 13 of the Regulating Act empowered the crown to establish a Supreme Court in Calcutta. Supreme Court consisted of one Chief Justice and three other judges inferior to the Chief Justice, being barristers of not less than five years of practice. Sir Elijah Impey was the first appointed Chief Justice and all Councils were also appointed by king.
Supreme Court was given very wide jurisdiction covering every possible type of litigations going on the Indian Courts in those days, cases against the company and the corporation of Calcutta also placed under the Supreme Court.
Civil Jurisdiction of the company extends to persons of Calcutta, Bengal, Bihar and Orissa employed directly or indirectly in the service of the company, persons who have voluntarily agreed in writing to refer their disputes to Supreme Court. Supreme Court was also given to accept the cases against the Governor General and any of his Councils. The Court was required to follow as for as possible, the Criminal procedure of British Courts. The Supreme Court cannot make arrest on Governor General or any of his councils. The courts were authorized to exercise Ecclesiastical jurisdiction to the residence in Bengal, Bihar, and Orissa, The Ecclesiastical laws were based on the Diocese of London. The admiralty jurisdictions were vested with the entire jurisdiction which was available to court of admiralty in England. Writ jurisdiction was the most important jurisdiction available in the court by the issue of the prerogative writs in the nature of mandamus, certiorari, procedendo or error, it could effectively control all the courts subordinate to it as well as other authorities created by the company ((See B.M.Gandhi’s Landmarks in legal and constitutional history, tenth edition. Pg. 113)).
The prerogative writs are mentioned below:
Mandamus
A judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.
Certiorari
A writ or order by which a Higher Court reviews a decision of a Lower Court.
Procedendo
In common law jurisprudence, procedendo is one of the prerogative writs. It is a writ that sent from an appellate court to the lower court with an order to proceed with the judgment.
Cases
Raja Nandakumar case
Raja Nanda Kumar, he was residing in Bengal and was big Zamindari.In March, 1775 he laid a letter before the Council member with charging allegation against Warren Hastings.According to the letter Warren Hastings received bribe form former Nawab wife Munni Begum for granting a Zamindari. Immediately council members they arranged meeting to issue summons to Nanda Kumar to attend before council to produce vouchers in support of his charges of bribery against Hastings. With the summons of Council, Nanada Kumar produced a letter in person which was written to him by Munni Begum. The council majority decided that Hasting received a sum of Rs.3,45,105 as bribe and directed him to refund the money in the Company’s Treasury. While charges against Warren Hastings were still in pending which were subsequently dropped. Nanda Kumar was suddenly arrested at the instances of a Calcutta merchant Mohan Das on a charge of forgery.
He was also implicated in a case of conspiracy when in the absence of proof was dropped. He was put on trail before the Supreme Court presided over by the Sir. Elijah Emphey on the charges of forgery. The trial began on 7th June 1775 and continued for a period of eight days without any adjournment. On the basis of Mohan Prasad evidence, the verdict of guilty was returned by the jury and Raja Nanda Kumar was condemned to death. Under the a statute passed by the British parliament in 1729. The death sentence was duly executed on 5th August, 1775.
Peculiar features of the Trail
- Charge preferred against Raja Nanda Kumar was shortly after he had leveled charges against Warren Hastings. Chief Justice Imphy was a close friend of Hastings. Every Judge of the Supreme Court cross examined the defense witness due to which the whole defense of Nanada Kumar collapsed. After the trail, when Nanda Kumar was held guilty by the court he filed an application for granting leave to appeal to the King-in-Council but the court rejected his application.
- Nanda Kumar committed the offence of forgery nearly five years ago, i.e much before the establishment of Supreme Court. Neither under Hindu Law nor under Mohammedan Law was forgery regarded a capital crime ((See BLS LLB- SEM 3 HISTORY OF COURTS CHAPTER 3. < http://mohdyasinblsllb.blogspot.in/search/label/BLS%20LLB%20-%20SEM%20III%20HISTORY%20OF%20COURTS%20CHAPTER%203> last assessed on 15/4/2015)).
Patna Case
Shahbah Beg Khan, native of Kabul came to India and settled down in Patna. He married Nadirah Begum and acquired a large amount of money while in the service of company. He had no heir, therefore he invited his nephew Bhadur Beg from Kabul to reside with him the intention was to adopt him. But before he could do so he died in December, 1776. Bahdur Beg took the first step and filed a suit against the Begum in the Patna Provincial Council for getting right over the property.
In the provincial Court the case placed before Muhammadan law officers. The officers after full hearing reported to the council that gift deeds were forged documents and no gift was made in favor of Nadirah Begum by deceased. They also reported that the nephew, Bahadur Beg court not be adopted under Muslim law. Therefore, recommended that property be divided into four parts out of which three parts were to be given to Bahadur Beg on the basis of consanguinity (relationship by blood) and also heir of the diseased and the fourth part be given to the widow.
Nadirah Begum was dissatisfied with the decision of the provincial Council, and she filed an appeal before the Sadar-Diwani-Adalat at Calcutta. Due to their busy routine work they could not considered the matter for a long time. With indifferent approach of the court, she filed a suit in the Supreme Court against Bahedur Beg, Kazi and mufti for assault, battery, unlawful imprisonment and claimed 6 lakhs as damaged. The supreme court issued ordered to arrest of Bahadur Beg, Kazi and mufti.
The Supreme Court decided that the documents were genuine and that Kazi and mufti did not act in good faith. The court awarded the damages of Rs.3,00,000 in favor of Nadirah Begum and the law officers were imprisoned.The whole case was bitterly criticized on the grounds that which law Bahadur Beg and law officers were subjected to the jurisdiction of the Supreme Court.The Supreme court justified his jurisdiction over Bahadur Beg as a former and paying land revenue to the company.
Cosijurah Case
One Cossinaut, Baboo had loaned a large sum of money to the Raja of Cossijurah. He had made attempts to recover the money through the Board of Revenue at Calcutta. He was not successful. Thereafter he sued the Raja in the Supreme Court. The defendant raised the objection regarding the jurisdiction. The jurisdiction of the Supreme Court was justified on two grounds 1) the defendant was employed to collect revenue; and 2) the document pertaining to the loan were executed by the Raja at Calcutta. Supreme Court issued a writ of Capias to arrest the defendant and fixed a bail of Rs.3,00,000. The Raja absconded. Therefore the writ could not be executed against him. The government challenged this writ with an intention to save the Raja. Government issued a notification to the landholders that they would not be tried before the Supreme Court, and the writ of capias could not be implemented. As the writ of capias could not be executed, the Supreme Court issued a writ of sequestration of the Raja’s property. The sheriff of the Court went with a small force to seize Raja’s property. Knowing this the government also sent another force for the protection of the Raja. In the sequence, the government’s force arrested court’s force.
After the cossijurah case the difference between the Court and the council went for deeper than any of the topics of grievances. Due to the serious conflicts between Supreme Court and the government, entire facts were brought to the notice of British Parliament. As a result, the British parliament moved to amend the Regulating Act by passing another act in 1781(Settlement Act).
The Settlement Act of 1781
Parliament of Great Britain passed the Settlement Act of 1781. This act significantly reduced the powers of the Supreme Court at Calcutta. Supreme Court was made immune to take action against the servants of the company if the work they have done comes under the official capacity. The Act separated the Governor General in council and the revenue matters from the Court’s Jurisdiction. The Supreme Court’s jurisdiction was restricted only to Calcutta. The appeals from the provincial council were taken to the courts of Governor and Council, and that was to be the final court of appeal. The act also asserted that Mohammedan cases should be determined by Mohammedan law and Hindu law applied in Hindu cases. The Settlement Act of 1781 rectified the flaws in the Regulating Act.
The Major demerits
The act was infavour of Governor General Council against Supreme Court. The Governor and Council was made superior and arbitrary, these changes were made to capture the territories in India. The Supreme Court was not allowed to make laws and executives were beyond the control of judiciary.
Supreme Court in other presidencies
The administrations of justice in the other presidencies become arduous because of the growing population in the British colonies crime rate raised and the cases got piled up. Judges did not have adequate knowledge of law, which made them tough to take decisions. In 1791 Madras Council pointed out the difficulties and suggested that appeals should go to the Supreme Court as a remedy to it in 1791 parliament passes a act to establish Recorder’s court and Bombay and Madras. Sir Thomas Strange and Sir William Syer were the first recorder.
Recorders court consisted of three aldermen and a recorder. Reorder was a barrister of not less than five years of standing. The Recorders Court absorbed into itself the Mayor’s court under the Chater of 1753. Its jurisdiction extended to British subjects, or, his Majesty’s subject residing within the territories of the respective town as well as in the territory of native premises in alliance with the government; and, to persons who are employed by, or were directly or indirectly in the service of, the company or any of his Majesty’s subject ((See M.P.Jain’s Legal and constitutional history. Pg-116)). Administered Hindu laws to Hindus and Muslim laws to Muslims and if the parties are of a different religion then the law of the defendant would be applied. The courts of Requests established in the three presidency towns by the Chater of 1753 had been found beneficial for deciding petty civil cases within 5 pagodas then its jurisdiction was increased to eight pagodas.
In 1800, British parliament passed an Act authorizing the crown to establish the Supreme Court in the presidency towns Madras and Bombay. The powers from the recorder’s court were transferred to the Supreme Court. In 1801, Sir Thomas Tragne the recorder was appointed the chief justice of Madras Supreme Court. In Bombay Supreme Court was inaugurated in 1824 and Sir.E.West being the chief justice. The Supreme Court’s emulated Supreme Court of Calcutta.
The powers of the Supreme Courts at Bombay and Madras had similar power to that of the Calcutta Supreme Court these courts were lawful within their respective territorial jurisdiction.