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The Supreme Court of Judicature 1774

British come here as merchant for doing jobs, slowly they establish their factories and increase the territorial area under them because their factories provide a lot of opportunity of employment for Indian and they started shifting near the factories which later called as mofussil area and then slowly British take control over the native people. Because of increasing trade and business, they require a proper management of the system and a regular system for suppressing the wrong activities. Slowly this process of management led to such a vast system of administration.

Charter by charter their system and administration criteria enhanced and development in the system of administration all over the country takes place. This also give us a sense a proper administer, by the flaws in the system, it gives us idea to improve the system. Among these the Enactment of the Regulating Act of 1773 and the Act of Settlement were two major enactments in the Indian Legal History.

The Regulating Act of 1773 was the first Act to bring in major changes in the administration and justice. then, late on, the Act of Settlement in the year 1781, was enacted to remove the flaws of the earlier passed Act. For the very first time there is introduction of SC in India which is separated from the executive and centralization of power takes place.

This charter is 1st one to provide more power to the judiciary from the executive. The Regulating Act of 1773 was the first attempt at creating a separate and somewhat independent judicial organ in India, under the direct control of the King. The Chief Justice and other puisne (junior) judges were appointed by the King.

The Regulating Act, 1773

After the battle of Plassey, the Britishers gain control over Bengal and established their company right in Bengal. In 1765, Robert Clive earned the Diwani of Bengal, Bihar and Orissa from the Mughal Emperor Shah Alam, against payment of Rs. 26 lakhs and Nawab give up his Nizamat right. Therefore, Company become the virtual sovereign and master of this territory.

But instead of this success Company was under debt and had to pay a large sum to the Crown to maintain the monopoly rights in India. The affairs of the company were poorly managed and the natives were unhappy. Even the Tea Act of 1773, which triggered the American War of Independence, was designed to rescue the near bankrupt company and to generate money from the colonies. In 1773, Lord North, the then Prime Minister of England, decided to introduce some form of legal government to manage the Indian possessions of the East India Company[1] . So, a secret and select committee appointed by the house of common, on the basis of the report provided by these committees Parliament of England enacted the Regulating Act 1773.

This act modifies the constitution of the company, subjected it, to some extent, to the control of the British Government and parliament: reorganized the Calcutta government and established the supreme court of Calcutta. The Regulating Act 1773, described fully as an act for establishing certain regulations for the better management of affairs of the East India Company as well in India as in Europe[2] (Jain, 2014).This act come in order to remove the defects and deficiencies of the company's rule in India and to improve the conditions.

Among the plethora of changes and innovation, one of the important innovations takes place in the history of the judicial system of India i.e. THE ESTABLISHMENT OF SUPREME COURT OF JUDICATURE, 1774 under SEC 13 of the act BY CHARTER.

Supreme Court of Judicature, 1774

On March 26, 1774, a Charter of Justice was granted for the establishment of the Supreme Court at Calcutta King George III. The Supreme Court was established on 22nd. October, 1774, and began functioning In January,1775[3]. It is the 1st attempt in creating a separate and independent judicial system in India.

This Supreme Court consisted one Chief Justice and three other regular judges or Puisne Judges. The Judges had to be Barrister-at-Law of England or Ireland of not less than five years' standing[4] The charter appointed Sir Elijah Impey as the chief justice and Robert Chambers, Stephen Caesar Lemaitre and john Hyde as puisne judges who were appointed by the king.

Also, under Clause XVIII of the first Charter ordained that 'the Supreme Court should be a court of equity, and shall and may have the full power and authority to administer justice, in a summary manner, as nearly as may be, according to the rules and proceedings of our High Court of Chancery in Great Britain'[5]. This court had the power to exercise of all the cases related to civil, criminal, admiralty, and ecclesiastical matters. Especially in criminal cases, the court has to act as court of oyer and terminer and goal delivery for the Town of Calcutta and the factories subordinate thereto, and was to use grand jury as well as petty jury consisting of British subjects residing in the Town of Calcutta[6].

Jurisdiction of Supreme Court of Judicature 1774

The jurisdiction of the court is only to the Calcutta region but can extended to the people residing in the Bengal, Bihar and Orissa, if-
  • they are British and His Majesty's subject.
  • Person, directly or indirectly, employed by the company or under the services of his Majesty's subject.
  • Person voluntarily submits to the supreme court. The similarity between the legislation of 1773-74 and the Charter of 1753 is obvious[7] .
  • Cases exceeding the limit of 500 rupees.

But the problem is that neither the Regulating Act 1773 nor the Charter of 1774, stated or give any hint related to the law, which should administer by the court especially in those cases which involve Indian as well.
The governor general and his council fall outside the jurisdiction of the supreme court and not under its ambit to hear anything against them for any offence committed by them in Bengal, Bihar, Orissa except in cases of the felony and treason.

Under the Regulating Act 1773, the King's bench is eligible to hear cases of crime, misdemeanor and offences committed by Governor General or any member of his council or by any judges of supreme court and also these high officials are indemnified from the imprisonment under the supreme court's order.

The court of King's Bench could likewise require the Governor-General in Council to examine witnesses in India and to send the records to England lie when cause of action involved the Chief Justice and other puisne Judges of the Supreme Court at Calcutta. When the proceedings were by Bill in Parliament concerning any offence committed against the Regulating Act of 1773, or any other offence committed in India, the Chancellor or the Speaker of the House of Parliament could issue warrants for the examination of witnesses in India. Parliaments power of requisition extended even in cases of capital offences, whereas the King's Bench could not order for the examination of witnesses in India when the evidence in question related to some capital offence[8]. In criminal cases, court decided cases with the help of jury both the Grand Jury[9] and Petty Jury[10].
  • Legislative Power

    Supreme Court has authorized to make his own procedures and rules which help it in exercising his jurisdiction. But these rules were subject to the King-in-Council's approval. Governor General and Council has the power to make laws but that law should be registered under the Supreme Court and should be reasonable in nature and that law become effective only after the registration is done.
  • Miscellaneous Provisions

    With the Regulating Act 1773 another change in the provision takes place that is, the Governor General and council and the Judges or the Supreme Court would not accept any kind of present; and no persons who is holding a civil or military office under the crown or the company, would accept any present. But this was not applicable to the cases of the Councilors, Surgeons or Physicians[11].
    Procedendo: the ability of the Supreme Court to order the lower court to procced to the judgment of the cases without specifying.
    It is also a court of equity and court of record.
  • Ecclesiastical Jurisdiction

    SC issue probates of bill for the British subjects who reside in Bengal, Bihar and Orissa for the British Subjects who resides in Bengal, Bihar and Orissa. Sc also had the power to issue the letter of administration if no executioner of the will is present then the SC had the power to appoint an executioner. With this it also had the power to appoint the guardians of the infants and insane children[12].
  • Admiralty Jurisdiction

    The court had the power to try the civil maritime causes or the crime that has been committed upon the high seas in these cases petty jury sit to take the decision and crimes which takes place at offshore or on the ship at the offshore of the Bengal, Bihar, Orissa, such cases tried by the SC who come under direct and indirect employment.
  • Appellate Jurisdiction

    Appeal from all the courts present at that time went to the SC and from here the appeal went to the kings-in-council if the case was of value more than Rs.1000.

The Merits of SC were:

  • The judges of the Supreme Court were professional lawyer.
  • They were directly appointed by the crown, sent from England and held office during Crown's pleasure.
  • The tenure was free from the wish of the Governor and the Company.
  • Judges and lawyer had the adequate knowledge of English law and know how to apply the law in the case.
  • Separation of the Judiciary and Executive. Most important it had the jurisdiction to try company's servant in both the civil and criminal cases.
  • The Englishmen residing outside the Calcutta thus fell beyond the pale of the judicial system and so they could commit crimes with impunity as there was no court to try them. But now SC was designed to take care of this drawback[13].
  • Now there is publication and registration of the law made by the Governor general and Council, under SC of judicature, only then the rule or law will come into existence.
  • Administration of Centralization of Power in India by making Bengal,Bihar ,Orissa subordinate presidencies under the control of Governor General and Council at Calcutta. Governor general become the central executive authority in India.
  • Also, the system of Judicial Review come into existence in India.
  • There is also the supervision of the power by the kings-in-council over the legislative power of the SC, regulation or the procedure created by SC subjected to the approval of the Kings-in-Council, even on the legislative power of the executive, by trying any case filed against the law or rule made by them within the 60 days of the registration of the law.
  • Now there is independence from the appointment and removal of the judges from the company and the Governor-in-council.
  • Supreme Court is both the Court of Equity and the Court of Law. It has both the admiralty and ecclesiastical jurisdiction at the same time.

Raja Nandkumar Case

Under the rule of the Nawab Siraj-ud-daulah, Raja Nandkumar was once held the position of the Governor of Hugli. After the British arrival, he has a friendly relation with the Britisher and he was also famous for his loyalty and famously known as Black Colonel during Clive's period. [14]

He brought up many charges of bribery and corruption and present many evidences against Warren Hasting, the Governor General in front of the council, due to which he shares a very bad relation with the Warren Hasting.

The Council received another letter from Nand Kumar dated 13th March 1775 through which he offered to produce vouchers supporting his charges of bribery against Warren Hastings and the Monson's motion was carried by a majority of votes in the Council. This irked Hasting and he left the seat. The Council elected Clavering to occupy the presiding seat at the meeting. He said that Warren Hasting take the bribe from the Munni Begum of about Rs. 1,04,105 and from Nand Kumar of about Rs. 2,50,000/- for appointing his son and Munni Begum as a diwan and guardian of Nawab respectively. [15]

Raja Nand Kumar produce the letter written by Munni Begum to him. Raja Nand Kumar said that Warren Hasting's Baniya Kanta Babu had come to him, nearly four months ago to collect this letter, but the original letter was not provided to him. The Council also called Kanta Babu, but he avoided appearing at the instance of Warren Hastings.

The Council found the charges of Raja Nand Kumar, against Warren Hastings to be true and therefore the Council by a resolution directed Warren Hastings to pay the same amount into the Company's treasury.[16] This verdict makes Nand Kumar the foe of Warren Hasting and make their relation more bitter and Warren wants to remove him from his way.

Only a few months Nanda Kumar was arrested with Fawkes and Radhacharan for conspiracy at the instance of the Warren Hasting for coercing third party to make the bribery against the Warren Hasting. Also, Warren Hasting had a friendly relation with then know chief judge of SC Impey and he already told him everything about his intention. So, later on Fawkes was charged with fine whereas Nand Kumar was reserved for a totally unrelated and pending case of forgery against him, which was manipulated by the Hasting. [17]

Mohan Prasad, an Indian brought this case of forgery done in bond in 1770 against Nand Kumar. Even the council of other three people protested against it but nothing happened and at last Nand Kumar was tried by the jury of twelve Englishmen who returned a verdict of ‘guilty' and consequently, the supreme court sentenced him to death under an act of the British parliament called the Forgery Act which was passed as early as 1728. [18] After passing the sentencing several actions were taken in his defense, they want to appeal in King-in-Council was refused by the SC, even the mercy petition to the council was turned down [19] and finally on 5th August 1775 Nand Kumar was hanged at fort William.

This verdict shows that Nand Kumar suffered the wrath of the Warren hasting because suddenly only after few months of presenting the bribery evidences against the hasting this case was taken into consideration and Hasting's friendly relation with Impey and also didn't provide opportunity to the defendant to proof himself and witnesses were cross examined by the judges themselves, also forgery never treated as a capital offence in personal laws of both Hindu and Muslim and at that time SC has power to give mercy to death sentence but nothing was done.

Nand Kumar's execution shocked Indians and provoked strong protests from Hastings's critics and rivals, both in India and in England. It was considered most unfortunate and unjust. [20]

Two broad questions come into existence with this trial:

Whether Nand Kumar was under the jurisdiction of the SC, because he was not the resident of the Calcutta, the offence, for which he was convicted, was committed before the advent of SC and that time it was taken by the Faujdari Adalat.

Whether the Act of 1729 of British Parliament, which made forgery a capital offence, is eligible to apply in India?

For the 2nd issue SC said that the statue of 1729 was introduced in India by the Charter of 1753, which had replaced the Charter of 1726. Since the Charter of 1726 introduced all the statutory provision of England till that time. And remaining provisions were introduced by the Charter of 1753 till 1753. [21]

This verdict show that Nand Kumar faces the wrath of the Hasting and this punishment id the result of going against the Governor General, because of many reasons and one of them is Hasting and Impey were school friends and this verdict come only after a few months of presenting the evidences of bribery against the Hasting.

The Patna Case

A native of Kabul (Afghanistan) Shahbaz Beg Khan came to India and served in the company's army for some time and retired. He earned considerable wealth and settled in Patna and married Nadirah Begum. Having no issues, he expressed his desire to adopt his nephew Bahadur Beg as his son and made him the heir of his property. But before giving effect to his wish, he died in December 1776. [22]

Now, the conflict arises between his wife and the nephew for the property. Here nephew want property on the basis of adopted son whereas the wife gave the plea that his husband never adopted him with rituals as a son, he only makes desire to do so. The widow Nadirah Begum, then again, asserted her claim to the said property on the basis of three documents are:
Dower-Deed (Meharnama)
Gift- Deed (Hibanama
Acknowledgment (Ikrarnama) [23]

Suit was filed in the Patna Council, where judges were accompanied by the Qazis and Muftis. On the very day the Patna council ordered the qazis and muftis to take the inventory of the property, collect the property and seal it according to the ascertained facts and legal justice, allotted shares to them according to the Muslim law and send such report to the council. [24]

But at that time instead of giving importance to justice, there were some other activities in which English judges were involved and give preference to those, this led to leaving all the work in the hands of the Qazis and Muftis, which was not according to the regulation prevailed. Qazis and muftis were not allowed to examine witness and to decide facts of the cases and give decision to the parties, their work is only to expounded the law applicable to the facts of the cases which were decide by the English judges after listening all the witnesses.

Later, qazis and muftis sealed and locked the property and the house of the decreased and widow was forced to took refuge in the mosque and she was insulted and humiliated by these qazis and muftis during the investigation.

Muftis and Qazis invalidate the 1st claim of widow i.e. dower deed on the basis of that it was already paid by the decreased As respects the other two documents , namely, the gift-deed and acknowledgment-deed, the law-officers recommended that they were invalid being forged and, therefore, the property of the deceased should be divided into four shares, out of which three should be given to Bahadur Beg as illustrative of his dad in India and the fourth offer ought to be go Nadirah Begum in accordance with the Mohammedan Law of succession. [25]

Accepting this decision of the law officers English judges, they ordered the execution of the decision.
Nadirah Begum was not satisfied with this decision, so she file an appeal in the Sadar Diwani Adalat where governor general and council sit as a judge. But there also no action was taken by the judges. Later she approaches to the SC and file a petition in the court against Bahadur Beg, muftis and qazis for abusing her and humiliating her, for assault, battery, wrongful imprisonment, trespass into her property, and other injuries and damages faced by her.

Now the question arises:
Q. Whether SC had the jurisdiction over Bahadur Beg?
Q. Whether Qazis and Muftis were liable for the act done under official capacity?

For 1st issue court said that he was a farmer of the land revenue, which is almost similar to the revenue collector so he directly or indirectly employed by the British Government. So, he was under the jurisdiction of the court.

For 2nd issue court said that Patna council and Quazis and muftis did not function as per their duties and did not perform their duties as per the procedure of law. [26] Because they have no right to give decision and decide the facts of the cases. And also, because they gave the ex-parte judgement and without any regular and proper proceeding
On that day court pass the arrest on mense and set the bailable amount to 4lakhs, which was very difficult to pay at that time. Later muftis and Qazis were taken out from the jail by the government providing the bailable amount.

Courts give the judgement that the gift deed presented by the women wasn't forged and she all the property of her husband and Bahadur beg, muftis and qazis were liable to all the injuries suffered by her and had to pay her damage of about 3lakhs. If they lived in the jails because failed to pay the damage.

Cossijura Case
It is said that in this case the fight between the council and court reached at its climax because of the ambiguity of charter of 1774 regarding the jurisdiction of the SC over the governor general and council.
In this case, Raja Sundernarian, who was a Zamindar of Cossijurah, was under a great debt to Cossinath babu. Cossinath babu tried to get his money from Raja by approaching to the Board of Revenue at Calcutta, his efforts proved in producing no result. So, Cossinath babu filed a civil suit against the Raja in the supreme court at Calcutta.

He also filed an affidavit on 13th August 1777-stating Raja being Zamindar, was employed in the revenue collection and therefore under the jurisdiction of the Supreme Court. Supreme Court issued a writ of Capias for Raja's arrest Raja avoided service of the writ by hiding himself. [27] After this, Council was informed by the collector of the Midnapur, under whose district raja resided, about the incident because it create problem in the revenue system and zamindars and landholders got feared by this verdict that are also now under the.

The council sought the advice of the Advocate General It issued notification informing all the landholders that they need not pay attention to process of the supreme court unless they were servants of the company or had accepted its jurisdiction by their own consent. Conflict between the Council and the Court The supreme Court issued another writ of sequestration on 12th November, 1779 to seize property of the Raja's house in order to compel his appearance in the Supreme Court The sheriff came with armed force Raja was imprisoned, the Englishmen outraged the sanctity of the family idol Action of the Council The governor General and the council ordered Colonel Ahmuty, Commander of armed forces to detach a sufficient force and to arrest the sheriff with his party.

And the sheriff and his party were arrested and sent to Calcutta as prisoners Council released them Order given to Colonel Ahmuty to resist any further writ of Supreme Court. Reaction of Cossinath babu brought an action for trespass against the GG and his council members individually. Now, SC ask the governor general and his council to present before the court. [28] This create a huge disturbance and GG and council refuse to do so, not present in court and SC also didn't force them further.
At last, nothing happens and petitioner himself withdraw the case.

Defects in the Charter of 1774

Because of the ambiguity in the provisions of the Regulating Act 1773 and inadequate description of the jurisdiction and power of Supreme Court in both the Regulating Act and the Charter of 1774, so many problems were created.· Undefined terms in the Act and Charter of 1774

Vague and undefined terms are used to define the jurisdiction of the SC over the people like His Majesty, British Subjects or sentence like person directly or indirectly employed by the Company.
  • Executive-judiciary relationship
    The charter didn't clearly mention anything about the status of governor general in the civil proceedings.
    Nor it differentiate the status of act done under official capacity and private capacity.
    It also didn't clarify whose decision should prevail in case of conflict between council and court.
  •  Changed pattern of Power
    After, the establishment of SC, judiciary had a control over the executive. Now, court has capacity to try civil and criminal cases of Company's servant for the acts committed in their public or private capacity. This create a conflict between the governor general and court and even to that extent governor general started resisting the court from doing is work.
  • Two distant and Independent judicial system
    In Bengal, Bihar and Orissa, there was already a system of mofussil courts which was a company's court and these courts derived their power by the Diwani Rights provided by the Mughals Administration. Now, by the Regulating Act another system of court come into existence, which were king's court. SC had jurisdiction over certain kind people in Bengal, Bihar and Orissa, who also come under the jurisdiction of the Company's Courts.

    There was nothing in the regulating act which clarified this situation.
    Nor it was clarified that if these company's courts done anything wrong that did SC had power to take it into consideration. Because also judges in mofussil courts were the servants of the company so they fall into its jurisdiction.
  • Difficulties of Indians
    By other ways SC make the people from outside Calcutta or people of Bengal, Bihar and Orissa fall under its jurisdiction and,
    If not then also for proving that they did not fall under its jurisdiction they have to present before the court and plead to its jurisdiction, this create a lot of inconvenience to the people in travelling and also expensive in nature.

    Most importantly they didn't understand the procedure followed by the SC and people had no clue which law applied by the court on what basis.
    Unknown language and verdict and proceedings make difficult for the native to believe that it is established for their welfare.
  • Which law to be administered
    It is created on the foundation of the Mayor's court which is an English court. So, SC also administered English law, but only to that extent which is suitable to the Indian conditions. This create a certain amount of uncertainty.

    Act of Settlement, 1781
    Due to such demerit with time everyone starts hating SC, executive dislike because it controlled administrative process and interfere in their actions. British subject dislike SC because it interferes in revenue collection matters It stood in the way of their own progress at the cost of the local people. Whereas Indian were already in fear and dislike SC because of what happened in Raja Nandkumar trial and the law adjudicated by SC was not known to anyone. [29]

    So, the court of directors send a complaint to the king-in-council in England against the SC and said that SC interfere in the administration and natives were feeling alienated. In return of which they appoint a secrete and select committee known as Touchet Committee.

    Main Purpose of the Act
  • To remove doubts and difficulties of certain provisions of the Regulating Act and the Charter which had created divisions between the court and the government.
  • To support the lawful government of Bengal, Bihar and Orissa so that revenue might be collected with certainty.
To maintain & protect the inhabitants in the enjoyment of all their ancient laws, usages, rights and privileges. [30]

Changes Brought by this act of 1781
Changes in the jurisdiction of the SC:
  • Collectors, revenue officers and judges or all courts were exempted from the jurisdiction of the court. Not only they but also the SC didn't have the competence to try revenue cases. [31]
  • Governor general and council, jointly and individually acting in their public capacity and could not be imprisoned except the cases of felony or any person appointed by them for doing their act were exempted from the jurisdiction of the SC.
  • While if any misdemeanor or wrongful act committed by the governor general and council members or by any judges or by any British official, then would be subject to any competent court in England.
  • This act tries clarify many vague terms of the Regulating Act and Charter of 1774 and also settled the question of jurisdiction of SC.
  • The Appellate jurisdiction shifted in the hands of the Governor-General and Council. Now, the appeals went from Provincial Courts to the Governor-General in council. [32]
Impact of the Act
The act gave superior authority to the council over the court and favored the council.
This act made the position of the council very strong so that it could continue to have a good control over the Indian empire.
It was the first attempt to separate the executive from the judiciary by defining the respective areas of jurisdiction.[33]
Still, the Act failed to give a vibrant impact and to remove all the flaws of the Regulating Act of 1773.

Initially the judicial system was not that well versed because of many reasons like the first priority of the Britishers was revenue collection or any activity of making profit instead of delivering justice and also these people are only merchants, who came here just for making profits and take back it to their own country. There was no intention to established a system as such. They start with a progressive step by making a system of courts and executive body.

These to enactment brought many great changes to the system of administration and justice in India per se. It can also be concluded that the Regulating Act of 1773 laid the foundation of the Centralization of power and Parliamentary Control and also most important modern concept of Judicial Review. It also based on the principle that that judiciary and executive should be kept separated. But though there were also some drawbacks to both the acts which can't be ignored. These drawbacks mostly due to the lack of experience and probabilities of the extreme or different situation. still these drawbacks give the scope of further enhancement and growth and development in the system and help in making new provision which help in future to deal with the situations.

  1. basically unit 3 Historical Evolution Of The Indian Legal System of a book
  2. Outline of Indian legal and constitutional history by mpjain lexis nexis 7th ed pg. 75
  6. Mp jain Indian legal and constitutional history book pg 76
  7. M. P. Singh Outlines of Indian Legal & Constitutional History universal law publication
  9. a group of people who decide if a person who has been charged with a crime should be given a trial in a law court.
  10. a jury of 12 persons empanelled to determine the facts of a case and decide the issue pursuant to the direction of the court on points of law.
  12. J. K. Mittal Indian Legal and Constitutional History
  13. by Rohit Kumar1 year ago1 year ago
  14. M. P. Singh, 2010, universal

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