Supreme Court at Calcutta, Madras and

Bombay
• After Battle of Plassey in 1757, the EIC became a political power. But its
control in the hands of men of commerce. They were keen on making
money than giving a good government.
• British Parliament was seized of this matter.
• Wealth of company officials increased while it declined for the company.
• The company wanted a loan of one million GBP.
• The state of affairs led to two committees-Select Committee and Secret
Committee.
• Following adverse reports, it was decided that ‘independence of
Company must yield to supremacy of Parliament’.
• Consequently Parliament of England passed Regulating Act of 1773.
 The Regulating Act 1773
• Came into force on 21 June 1773. Sought to achieve following
objectives:
i) To reform the constitution of EIC
ii) To reform the company’s government in India
iii) To provide remedies against the illegalities of company’s servants in
India
Provisions made in furtherance of ii) and iii) were:
1. Governor General and Council: Governor and Council replaced by
Governor General and Council consisted of 4 councillors in Calcutta.
Governor General had casting vote.
 Continued--
2. Powers and Duties of the Council: Entire civil, military, revenue
and territorial acquisitions of Presidency of Calcutta and provinces of
Bengal, Bihar and Orissa vested in Governor General and Council.
3. Control of Madras and Bombay: Presidencies of Madras and
Bombay put under the control of Governor General and Council.
These presidencies could not enter into war or peace treaty with
Indian Princes without consent of Governor General.
4. Legislative Power of Council: It could make any rules, regulations
and ordinances for good governance of Calcutta and provide
punishment.
 Continued……
These legislative powers were subject to following conditions:
a. The legal instruments must not be repugnant to laws of England.
b. Not valid unless registered and published in Supreme Court.
c. Supreme Court to display them for 20 days before registration.
d. Governor General and Council required to transmit all rules,
regulations and ordinances to Secretary of State in England. The King
could disallow them.
5. The Supreme Court: Section 13 of the Act 1773 provided for
Supreme Court at Calcutta and authorized King to issue a Charter for that
purpose.
6. Provision on presents and private trade: All functionaries from
Governor General and below prohibited.
 Continued…
• Jurisdiction of King’s Bench over Governor General, Councillors, company’s
servants, judges and British subjects.
• These functionaries could be tried in England if they violated acts or
committed crime against His Majesty’s subjects or any inhabitant of India.
Supreme Court at Calcutta
Pursuant to Regulating Act 1773, King George II issued a Letter of Patent for
establishment of Supreme Court of Judicature at For William.
Composition of Supreme Court
One Chief Justice and three other judges with Barrister of England or Ireland of
5 years experience.
Judges appointed by the Crown and held office during His Majesty’s pleasure.
Salary CJ 8000 GBP/annum, Judges 6000 GBP/annum
 Jurisdiction of the Supreme Court
• Civil Jurisdiction: It was of 2 kinds. Territorial and personal.
With reference to Presidency of Calcutta the court had territorial
jurisdiction therefore civil matter of all persons arising within
Presidency of Calcutta fell within jurisdiction of SC.
Beyond the Presidency limits of Calcutta and within provinces of
Bengal, Bihar and Orissa the SC had only personal jurisdiction.
Therefore a suit could be filed in Supreme Court against any of the
following irrespective of the location of cause of action.
i) East India Company
ii) Mayor and Aldermen of Calcutta
iii) Any subject of His Majesty who resided or held property in Bengal,
Bihar or Orissa.
 Continued..
iv) the executors and administrators of persons mentioned in category
iii.
v) Any person who was in employ of company, Mayor or Aldermen
directly or indirectly at the time of filing of suit.
vi) Any person who agreed with any subject of His Majesty that if cause
of action exceed Rs. 500/- the dispute shall be decided by Supreme
Court.
While jurisdiction of SC for all above matter was original but in respect
of vi) any matter decided or pending could be brought to SC for
decision by any one of the parties.
 Continued…
• Equity Jurisdiction: The SC was given the same equity jurisdiction as High
Court of Chancery in Britain at that time. It operated on equity principles and
not on laid down laws. This court tried to achieve natural justice following
principles of equity.
• Criminal Jurisdiction: Extended to all British subjects residing in Calcutta and in
territory of Bengal, Bihar and Orissa.
Only British people, their servants and persons employed in company
covered.
Other natives not covered.
SC to follow procedures of English Courts.
Trial with help of jury.
No jurisdiction to try Governor General, Members of Council or judges of
SC except treason or felony. Mercy petition to Crown on recommendation of SC.
 Continued…
Ecclesiastical Jurisdiction: Had same jurisdiction over British subjects in India as
Ecclesiastical court in England.
In that capacity it acted as court of testamentary and probate jurisdiction.
It also appointed guardians and keepers for infants’ and lunatics’ properties.
Admiralty Jurisdiction: It had same admiralty jurisdiction in all civil and maritime
and in all maritime crimes committed upon high sea.
In such cases, SC took help of petty jury.
Other powers of SC: It was a court of record.
Its judges appointed as justices of peace in Bengal, Bihar and Orissa and given
same status as judges of King’s Bench in England. They could arrest offenders and
punish them in a summary trial.
They could issue prerogative writs like King’s Bench in London.
All functionaries to obey powers, jurisdiction and authority of SC.
Appeal: In all civil cases for 1000 Pagoda or more. In criminal cases, appeal to King
in Council through SC, who had power to withhold.
 Working of the Supreme Court
Sir Impey was the CJ while Robert Chambers, John Hyde and Le
Maistre first three Puisne judges of SC. Its establishment good due to:
• First British Court in India having lawyer judges
• Independent of company’s government in India
• Jurisdiction very wide-could redress any legal wrong
• British subjects brought to its jurisdiction
Limitations:
• Ambiguities in Regulating Act 1773 and Letter Patent.
• British laws introduced in India without regard to India’s socio-cultural
milieu.
 Specific Instances of Difficulties
1. Relationship between Governor General and Council and SC-not clearly
defined. British subjects not liable except felony and treason. Silent on
civil or other cases.
2. Regulating Act silent on position of Diwani function in respect of
Governor Gen and Council (They thought they are free) and SC thought
no interference in revenue management but intervention if violence in
collection of revenue.
3. Relationship between company’s court in Muffossil area and SC-
interference by Supreme Court increased.
4. Jurisdiction of SC outside presidency limits of Calcutta not defined in
1773 Act. SC issued Subpoenas to witnesses
5. Terms like British subjects, Subjects of Great Britain, Subjects of His
Majesty, of us and our heirs not defined in 1773 Act.
 Continued…
6. Clause 4 made judges of SC as justices of peace through Bengal Bihar
and Orissa like judges of King’s bench. They issued writs including the
British. Resentment.
7. Jurisdiction of SC not defined about natives.
8. Ambiguity about application of laws
9. Position of natives in presidency limits not clear
10. SC applied criminal laws of England, capital punishment given for
minor offences-very harsh
 Raja Nand Kumar’s case
One of the most outstanding cases from modern legal and political
history. Also called judicial murder.
Facts of the case:
• Raja Nand Kumar held high position under EIC and Nawab.
• Alleged to GG in March 1775 that Warren Hastings, then GG received in
1772 from one Munni Begum Rs. 104105/- and from Nand Kumar Rs.
250000/-for appointing Nand Kumar’s son and Munni Begum to the
post of Diwan and Guardian of Nawab respectively.
• Majority of Council members decided that Warren Hastings should
return the money to Company. Governor General had no support from
the Council. Decision of council by majority.
• After that Warren Hastings in April 1775 approached Supreme Court to
prosecute Nand Kumar and two others for conspiracy.
 Continued….
• The allegation was that Nand Kumar and two others had forced one
Kamal to make false allegation against Warren Hastings. Case fixed for
hearing in first week of June 1775.
• In the meantime a case of forgery was started against Nand Kumar.
• In forgery case, prosecution was moved by one Mohan Prasad who
alleged that to defraud the executors of one Bulaki Das, Nand Kumar
had forged a bond in his favour 1770.
• The trial was started on 8 June 1775 and ended in the morning of 16
June 1775. The court condemned Nand Kumar to death.
• Nand Kumar was hanged on 5 August 1775.
 Two broad legal issues
1. Whether Nand Kumar was under the jurisdiction of Supreme Court?
2. Whether the Act of 1729 (or 1728 as per some authors) of British
Parliament which made forgery a capital offence under which Nand
Kumar was indicted and tried was extended to India.
First Issue:
Based on the plea that Nand Kumar was not a resident of
Calcutta in 1770 when the offense was committed and that before the
advent of Supreme Court all Indians were tried by Fauzdari Adalat.
Accordingly Nand Kumar should be tried by a competent Court. That
Supreme Court was not a competent Court.
The issue of jurisdiction was withdrawn.
 Continued….
Second Issue:
It was argued that Act of 1729 was designed to deal with the peculiar
crimes committed in England and not applied to India.
The Supreme Court rejected this plea on the following grounds:
I. That the Statute of 1729 was introduced in India by Charter of
1753. This Charter had replaced Charter of 1726.
Since Charter of 1726 had introduced all English Laws existing at
that time the Charter of 1753, which replaced it introduced the statutes
passed till 1753 including the statute of 1729.
ii. That the statute of 1729, was applied in 1765 in the case of
Radhacharan who was sentenced to death. Later granted pardon.
iii. That the Judges had no option to try forgery under any other law
 Continued..
• During proceedings, defense witnesses severely cross-examined by
judges, uncommon in law courts. The defense collapsed.
• A prosecution witness became hostile. The Supreme Court held it was
due to Nand Kumar’s men.
• After the verdict, the counsel of Nand Kumar protested and said that
bond alleged to have been forged was neither a bond nor a promissory
note under English Law. Rejected by Supreme Court.
• The Counsel then moved a petition in Supreme Court for appeal to King
in Council saying the defendant was Indian Hindu and not aware of
English law. It was also rejected.
• The Supreme Court also rejected the mercy petition to King on the
ground that ignorance of law was pleaded.
 Continued…
• Nand Kumar antagonized Warren Hastings who through his school
friend Lord Impey Chief Justice of Supreme Court wanted to teach
him a lesson.
• It created a terror in the minds of Indians. They feared Supreme Court
rather than respect it.
• Impey was impeached in England though charges not proved.
• Warren Hastings was also tried in England.
 The Patna Case
• Example of conflict between the Company’s Court and Supreme Court
and finally between the Supreme Court and Governor General and
Council.
• Because of the uncertainty of jurisdiction of Supreme Court.
• It also shows bad condition of Company’s Court and Supreme Court’s
desire to improve it.
Resume:
• A suit for damages filed in the Supreme Court in 1777, by Naderah
Begum, a widow against her husband’s nephew, Beg Bahadur, the Qazi of
Patna and two muftis of Patna provincial Court.
• For injuries inflicted on her in consequence of an order and a decree of
the council at Patna in exercise of the functions as a Court of Justice.
 Continued…
Facts of the Case:
• One Shahbaz Beg Khan came from Kabul and served the company for
sometime.
• After retirement from Company’s service he settled down in Patna
and married Naderah Begum from whom he had no child.
• After sometime his nephew Behdar Beg came from Kabul and stayed
with him till his death in 1776.
• Later on dispute arose between Naderah and Behdar Beg, each
claiming whole property.
• Naderah under a gift (Hibbanama) alleged to have executed by her
husband and nephew as adopted son.
 Continued…
• On 2 January 1777, Behdar Beg filed a suit in Patna council alleging that
he was the adopted son of Shahbaz Beg Khan, so entitled to entire
property.
• He also prayed that Naderah be stopped from removing the property
and property removed be restored.
• Same day Patna council ordered the Qazi and two Muftis to make
inventory of property of Shahbaz and allot the shares of each according
to Muslim law.
• After taking evidence of both sides the Qazi and Muftis reported to
Patna Council on 20 January 1770, that the deed was forged and
property of Shahbaz be divided as follows:
 Continued…
- Three shares to go to Bhedar Beg because his father was the legal
heir of the deceased and he himself was his adopted son.
- Remaining one fourth should go to Naderah, the widow of the
deceased.
• Accepting the decision of the law officers, the Patna Council ordered its
execution.
• The law officers executed the order.
• Naderah, feeling insulted, moved to Calcutta and filed a case for trespass
and assault in Supreme Court against Behdar Beg, Qazi and two Muftis.
• The GG and Council resolved to defend the case on behalf of defendants
because they were being prosecuted for using their judicial
powers/functions.
 Continued…
The Legal issues raised:
i. Whether Behdar Beg, who lived outside Calcutta was subject to the jurisdiction of Supreme
Court?
ii. Whether law officers could be prosecuted for acts done in their judicial capacity?
The Supreme Court decided both the issues in affirmative as below:
iii. That Behdar Beg was a farmer of revenue, he was not different from revenue collector, so he
was in the employ of the company.
iv. Though Patna Council was a legally constituted court but it had no jurisdiction to delegate its
function to law officers-the Qazi and Muftis.
On the charge of trespass and assault the Supreme Court said:
• Since she was in possession of the property when defendant proceeded against her, their
guilt was established.
• Supreme Court awarded Rs 30000/-as damages and Rs 9208-8 annas as cost to Naderah.
 Aftermath
1. The defendants brought to Calcutta. The Qazi died on the way.
2. The rest put in jail as they failed to pay the damages ordered by
Supreme Court.
3. They remained in jail till 12 August 1782 when released on a Bond
executed by the company as per the Act of Settlement 1781.
4. An appeal was filed to Privy Council in 1781 but dismissed in 1789
for want of prosecution.
Later in March 1779, Naderah filed a similar case against the
members of Patna Council.
Supreme Court rejecting the plea of defendants that they acted in
their judicial capacity held that their entire proceedings were illegal and
corrupt and awarded Rs 15000/- as damages.
 Conclusions
1. This case exposes illegalities committed by Provincial Councils in
leaving their work to law officers.

2. Shows obscurity of Supreme Court’s jurisdiction.

3. This case created difficulty for company’s government in India.

4. The entire loss fell on the Company as it had to pay the decreed
amount as also some compensation to Qazi’s children and Muftis.
 The Kasijora Case
This case brought the Supreme Court and the Governor General and Council
into direct conflict. Led to breaking point.
Facts of the Case
• One Kashinath Babu filed a debt suit in the Supreme Court against Sundar
Narain, Raja of Kasijora.
• The Raja was under heavy debt against Kashinath Babu with whom he had
signed two bonds.
• As Zamindar, the Raja used to pay annual revenue to the company.
• In the suit it was alleged that he was indirectly in the service of the company
and therefore, the Supreme Court had jurisdiction over him.
• The court issued a warrant of arrest against the Raja authorizing the sheriff to
accept Bail in the sum of Rupees 3 lakhs.
 Continued…
• At this stage Governor General and Council sought the advice of the
Advocate General who advised against the Raja appearing in the Court and
doing any act which might amount to a recognition of the Supreme Court’s
authority.
• In his opinion the AG said that the Regulating Act did not extend the
jurisdiction of Supreme Court to Zamindar.
• The AG also advised that in all similar cases as well as in the present the
power of the Government shall not be employed in the aid of the judicature.
• On 17th December 1779, the Governor General and Council gave a general
notice to all Zamindars that as they were not subject to the jurisdiction of
the Supreme Court, they shall not appear, plead or do any such act which
might amount to a recognition of the Supreme Court authority.
 Continued…
• Following this advice, the Governor General and Council directed the
Collector of Midnapore not to offer any help to Court’s Sheriff in this
regard.
• Since Raja was hiding and warrant could not be served on him the
Supreme Court ordered for confiscation of his property.
• Now the Governor General and Council directed the commander of
Midnapore cantonment to intercept Sheriff’s men.
• The Commander accordingly dispatched the necessary force to arrest
Sheriff’s men. They were arrested and sent to Calcutta as prisoners.
• Kashinath Babu then moved to Supreme Court for a writ against the
guilty Officers including Warren Hastings (Governor General) and
Councillor Barwell for committing Contempt of Court.
 Continued…
• The Court issued writ against all except Warren Hastings and Barwell, but the
writs could not be enforced against anyone except the Lawyer of Calcutta whom
the court got arrested and imprisoned as a representative of the contemnor
• The lawyer was North Naylor, who had advised the Company wrongly, said the
Supreme Court. He later died in prison.
• Kashinath filed another complaint against the Governor General and the
councillors for having assaulted the Sheriff’s men and rescued the seized
property with an intention to deprive him of the recovery of his debt from the
Raja.
• The councillor initially appeared through their counsel and pleaded that their
acts were performed in their public capacity.
• But later they decided to withdraw appearance and through their counsel
conveyed to the Supreme Court various reasons in view of which the Supreme
Court should not proceed with the case.
 Continued…
• Thus, a deadlock was created; the councillors will not appear before court
and court could not enforce its order against them.
• Suddenly, on 12th March 1780 Kashinath withdrew his suits against the
Raja and the Councillors.
Outcome of the Case
• The jurisdiction of the Supreme Court was reduced to the territorial limits
of the Presidency town of the Calcutta.
• The dignity of the Supreme Court was adversely affected.
• Moderate improvement made in Company’s Court to impress people that
not only the Supreme court but other Courts also administered justice.
• Finally, Settlement Act 1781 passed to indemnify Governor General and
Council for using force against the Supreme Court.
 Reputation of Supreme Court
• It represented a unique phenomenon.
• It was disliked by all and had the goodwill of none.
• The officers of the Government detested it because it interfered with their actions
and sought to discipline them on receipt of complaint.
• The Government hated it as it sought to control the administrative process and
interfered with collection of revenue.
• The Europeans disliked it as it stood in the way of their self-aggrandizement at the
cost of the people.
• The Indian dreaded it in spite of the fact that it stood to protect them from
oppression of officers in collection of revenue.
• Arrest on mesne process was in itself a great evil for the Indian generally.
• Thus policy of controlling administration by judicial control had failed completely.
 Case of Kamaluddin
Resume: This case led to the conflict between Supreme Court and the
role of Collector in the capacity to collect Diwani (land revenue)
Facts of the Case:
• Kamaluddin was farmer on behalf of Kanta Basu. He was thus real
farmer and was in arrears of land revenue but he disputed.
• As a result Kamaluddin was committed without bail and was jailed.
• Kamaluddin obtained writ of habeas corpus from Supreme Court at
Calcutta to set him free.
• The Supreme Court granted him bail.
• The Supreme Court held that correction of books of accounts in case of
dispute about amount should not be a reason for sending people to jail.
 Continued….
• This amounts to oppression and Supreme Court has a right to protect
British subjects.
Conflict:
• This enraged the members of the Council who held that Judges were
not empowered to take cognizance of revenue collection.
• The Council said it was Diwan of Bengal as mentioned by the
Regulating Act.
• The majority of the Council decided to re-imprison Kamaluddin for
not paying revenue.
• However, Warren Hastings did not support this move.
 Continued……..
Outcome of the case of Kamaluddin:
• Conflict between the Council and the Supreme Court
• Conflict between the Governor General and three members of
Council who were determined to take Supreme Court head on.