Introduction to the Regulation Act of 1773
Section 13 of the Regulation Act of 1773 made the provision for the establishment of Supreme Court of Calcutta. The Regulating Act was passed in the British Parliament somewhere around June in 1773. It was the first ratification which was given by the parliament and authorization that defined the powers and authority of the East India Company with respect to its Indian possessions.
The East India Company was in severe financial crisis and had to ask for a loan of 1 million pounds from the British government in 1772. Allegations of corruption and nepotism were ever so rampant against the company officials. After a terrible famine in Bengal where a huge population perished it made the situation even more worse for the company. On top of that the Dual form of administration instituted by Robert Clive was complex and it drew a lot of complaints. If what this system said were to be taken literally, the company had Diwani rights which were obtained after the Battle of Buxar in Bengal and the Nawab had Nizamat rights which were judicial and policing rights as secured from the Mughal Emperor.
In practice, both powers which were the Diwani and Nizamat, were vested with the company. The farmers and the general population had to suffer as their improvement was neglected and the company was only concerned with maximising revenue. This resulted in a state of increase of lawlessness in Bengal. The defeat of the company against Mysore’s Hyder Ali in 1769 gave rise to further complications for the company and its financial situation.
Provisions of the Regulating Act
This act permitted the company to retain its territorial possessions in India but sought to regulate the activities and functioning of the company. It did not take over power completely, hence called ‘regulating’.
The act provided for the appointment of a Governor-General along with four Councillors in the Presidency of Fort William (Calcutta), jointly called the Governor-General in Council.
As per this, Warren Hastings was appointed as the Governor-General of the Presidency of Fort William.
The Governors in Councils at Madras and Bombay were brought under the control of Bengal, especially in matters of foreign policy. Now, they could not wage war against Indian states without Bengal’s approval.
The company directors were elected for a period of five years and one-fourth of them were to retire every year. Also, they could not be re-elected.
The company directors were directed to make public all correspondence on revenue, civil and military matters with Indian authorities before the British authorities.
A Supreme Court of Judicature was established at Calcutta with Sir Elijah Impey as the first Chief Justice. Judges were to come from England. It had civil and criminal jurisdiction over the British subjects and not Indian natives.
Setup of The Supreme Court in Calcutta
The Supreme Court was set up in Calcutta in accordance with the Regulating Act of 1773, by a Charter of George III issued on March 26, 1774. It superseded the Mayor’s Court which has been functioning at Calcutta since 1753. The main idea behind the creation of the supreme court had been to purify the administration of justice in accordance to the English law and procedure in the British settlement of Calcutta by creating a court which could function independently of the company’s executive. It was to be constituted by persons who had been professional lawyers for at least five years and their appointment and removal vested with the Crown. The judges of the Mayor’s Court who were known as the Mayor and the Aldermen, on the other hand, used to be junior servants of the Company who were without any legal training and whose tenure depended on the pleasue of the Company’s government. Thus, the Supreme Court was better equipped to secure a fair and impartial administration of justice than its predecessor. Though primarily designed to administer justice to persons of British origin residing in Bengal, it was also intended to afford protection to the Indians against the high – handedness of the Company’s servants.
Establishment of the Supreme court is also considered as a landmark in the history. First, Supreme Court was established in Fort Williams in Calcutta where the city of Calcutta was regarded as the Crown’s territory ever since the purchase of the villages of Kalikata, Sutanti and Govindpur which formed the nucleus for the metropolis that developed subsequently. It was purchased from the Nawab of Bengal towards the end of the seventeenth century. Indians living in this territory were also considered as the subjects of the Crown. Therefore, they had been amenable to the mayor’s court and became automatically so to its successor which was the Supreme Court. Later on, it was established in Madras and Bombay. The Supreme Court of Judicature at Calcutta was created in lieu of the Mayor’s Court, functioning there under the Charter of 1753. The act empowered the Crown to establish the Supreme Court at Calcutta by a royal Charter. The act specified the lines on which this Charter was to be based. The Court was to consist of a Chief Justice and three puisne judges to be appointed by the Crown and holding office during its pleasure. Only a Barrister of at least five years standing could be appointed as a judge.
The court was to be called a ‘Court of Record’. The Supreme Court was to enjoy a very wide jurisdiction. it was authorised to administer justice in civil cases. It was authorised to administer justice in criminal cases in the character of a ‘Court of Oyer and Terminer and Goal Delivery’ for Calcutta, the factory of Fort Williams and the factories subordinate thereto. It was to use grand jury as well as petty jury. The Court was further empowered to exercise Admiralty and Ecclesiastical Jurisdiction which related to property of deceased Britishers.
Jurisdiction of the Court extended to all civil matters relating to all persons, arising within the presidency of Calcutta. Beyond the Presidency limits and within the provinces of Bengal, Bihar and Orissa, the Supreme Court had only limited personal jurisdiction.
Jurisdiction under the Supreme Court
The types of Jurisdiction under the Supreme Court of Calcutta were:
Where the East India Company; the Mayor and the Aldermen of Calcutta; any british citizen who holds the property within the provinces of Bengal, Bihar and Orissa; the Executors and administrators of the aforementioned persons; any other person who during the time of filing a suit, or, who was present during the time when incident occured, was directly or indirectly in the services of the company or the Mayor, Aldermen etc, of Calcutta; any person who has already given in writing that any matter exceeding five hundred will be decided by the Supreme Court.
The Supreme Court had the same jurisdiction as that of High Chancery of Great Britain where equity eans balance and if there is no settled law then the court would give out a balanced justice.
In criminaljurisdiction,the Supreme Court was to hold trials by jury. Both the Grand and Petty Jurors were to be British subjects re sident in the Town of Calcutta. The Regulating Act as well as the Charter responsible for the establishment and constitution of the Supreme Court did not specify any law for the court to administer In suits involving the Indians.
It could grant probates of will to the British subjects within the territories of Bengal, Bihar and Orissa and also letters of administration for the goods, chattels and for other effects to the British subjects dying intestate. It was also empowered to appoint guardians and keepers for infants and insane persons and their estates in accordance with the rules prevalent in England.
In its capacity as a Court of Admiralty for the territories of Bengal, Bihar and Orissa it could try cases, civil and maritime, and all crimes committed upon vessels, ships and ferries and high seas and off- shores with the help of petty jury consisting of British Subjects residing in Calcutta.
Further authority of the Supreme Court
As given in the provisions of the Regulating Act the Governor-General and Council were given more leverage in the civil and military government of the Presidency of Fort William in Bengal. They were authorised to exercise unlimited power in regards of ordering, management and government of the territorial acquisitions and revenues of the kingdoms of Bengal, Bihar and Orissa. The plenary powers of the preceding President and Council were to be vested under the Act of 1773 in the Governor-General in Council.
The Supreme Court on the other hand was given full power and authority to hear and determine all complaints against any of His Majesty’s subjects for any crimes, misdemeanours or oppressions committed or to be committed, and also to entertain, hear and determine any suits or actions whatsoever against any of His Majesty*s subjects in Bengal, Behar and Orissa, and any suit, action or complaint-against any person who shall at the time when such debt or cause of action or complaint shall have arisen have been employed by or shall have been directly or indirectly in the service of the Company, or any of His Majesty’s subjects. The Supreme Court consequently exercised its authority over all persons and in all causes of action irrespective of the social or official position of the persons concerned. The Supreme Court enjoying the jurisdiction as a common law, equity, criminal, ecclesiastical and admiralty court was from the beginning of its functioning fairly busy in its work.
The civil jurisdiction of the Supreme Court extended over all European and British Subjeots resident In Bengal, Behar and Orissa, and every other person who, either at the time of bringing the action, or at the time the cause of action accrued, was employed or was directly or indirectly in the service of the company or of any other British Subjects. In criminal jurisdiction, the Supreme Court was to hold trials by jury. Both the Grand and Petty Jurors were to be British subjects re sident in the Town of Calcutta. The Regulating Act as well as the Charter responsible for the establishment and constitution of the Supreme Court did not specify any law for the court to administer In suits involving the Indians. In cases of criminal appeal a greater amount of restrictions was imposed.
Defects of the Regulating Act 1773
The Regulating Act of 1773 however created a few difficulties like the vagueness and serious omissions of the Law to be applied which created serious consequences. The Regulating Act 1773 did not elaborate about the law that was to be administered by the Supreme Court. Apparently it was the English Law which was insular, technical, formless, tempered in its application to English circumstances only. To whom was that law to be applied? To British subject and to persons in the employment of the Company? But the point was by no means clear. All these gave rise to conflicts between the Supreme Court and the Supreme Council (Govt.) It was also not made clear, whether the company in its Diwani (Revenue) capacity was subject to the jurisdiction of the Supreme Court. The Company considered itself immune from the jurisdiction but the Supreme Court held that it had jurisdiction. This led to complicated cases. It was not clear whether the Zamindars who collected revenues were the servants of the company. The Supreme Council (i.e., Govt.) had held that they were immune from Supreme Court’s jurisdiction. This also led to serious litigation.
The Act while aiding at a better administration of Bengal vested the Company’s administration in the Province with effect from August 1, 1774, in a Governor-General and four Councillors appointed to serve for five years as the highest executive of the Presidency. At the same time the Act had imposed upon the Supreme Court to establish the task of dealing with the oppression in the executive Government. The nature and scope of the respective functions of the Governor- General and Council on the one hand and the Supreme Court on the other were not clearly defined. The ambiguous and inadequate provisions- of the Regulating Act of 1773 and the Charter of Justice of 1774 soon brought the – Executive and the Judiciary of the Presidency into many conflicts which continued in one form or another for around seven years till a new enactment was made clearly defining their respective spheres of action. The Regulating Act in a way failed to provide clarity that such and such functions and discretions on the part of the Governor-General and Council were beyond the jurisdiction of the Supreme Court for a judicial review of the administrative actions of the executive. The Supreme Court consequently exercised its authority over all persons and in all causes of action irrespective of the social or official position of the persons concerned.
The Governor-General was not vested with the power to veto.
It did not address the concerns of the Indian population who were paying revenue to the company.
It did not stop corruption among the company officials.
The Supreme Court’s powers were not well-defined.
The parliamentary control that was sought in the activities of the company proved to be ineffective as there was no mechanism to study the reports sent by the Governor-General in Council.
The English East India Company had assumed the role of a political power. After the Battle of Plassey and Buxar, the employees of the company exploited the people and hoarded on the wealth of the people. After cumulating this wealth,
Trial of Nand Kumar – The case of Nand Kumar stands in a class by itself. It brings out the conflicts between Warren Hastings and the majority in the council, on the hand , and between the courts and the majority, on the other, Nand Kumar was the proteye of the majority in the council and his trial before the supreme court thus become in a way a trial of strength between the court and the majority.
The case illustrates forcefully the anomalous charter of the first impact of the English law on the Indians and depicts what kind od difficulties arise. When a foreign system of law is transplanted suddenly in a society and is enforced with all its rigours.
The court’s constitution jurisdiction , powers, law, and language were all foreign and unknown to the Indians and were completely out of harmony with their customs and traditions . All these aspects of the matter were dramatically brought out in the Nand Kumar Case.
Raja Nand Kumar, an influential man in Bengal, encouraged by the council majority brought some charges of corruption and bribery against Warren Hastings before the council Warren Hastings was very much annoyed at this, he even left the council meeting when these charges were being heard. A few days later, Mohan Pershad filed certain charges of forgery against Nand Kumar was tried by court with the help of a jury was found guilty of having forget certain documents and was sentenced to death.
Nand Kumar trial has also been looked upon with suspicion. Nand Kumar was a victim of Hastings. Impey was a good friend of Warren Hastings. Warren hasting conspired with Impey to put Nand Kumar out of Hasting’s way. Nand Kumar out of Hastings way, Nand Kumar trial formed one of the charges in Impey’s impeachment.
The charge of the conspiracy against Impey is based only in circumstances and the sequence of events. It has been said in favour of Impey that he was not alone in convicting Nand Kumar. He was tried by the whole court consisting of four judges with the help of a jury of 12 Englishmen.
The court did not perhaps be a stronger case deserving excising of the court’s power. The act of 1728 under which Nand Kumar was convicted had never been formally promulgated in Calcutta and the people could not be expected to know anything about it. The Hindu or Muslim law never regarded forgery as a capital offence.
The judges wanted to prove that the court was independent and could not be influenced or dictated by a hostile executive. The trial and executive of Nand Kumar administered a rude shock to the Indians.
The court held that the statue of 1728 was applicable to the Presidency town. Now whether and English state was applicable or not to a place depended on two factors- whether or not suitable to the conditions prevailing there; and the date when the English law was introduced there.
The defence in Nand Kumar’s case never challenged this view. The court held that the statue of 1728 was operative and according sentenced Nand Kumar to death for forgery. The charter of 1753 and even the supreme court charter of in 1774 had re-introduced English law into Calcutta. Quite a good amount of this law was repugnant to the customs and morals of the Indian people.
The Patna case whose proceedings took place in 1777-79. The latter case brought the quarrel between the Supreme Council and the Supreme court to a state of crisis by the beginning of 1780. The facts of the case are as follows. Cossinaut Baboo had lent a large sum of monet to the Zamindar or Raja of Cossijurah. He had tried in vain to obtain this money through Board of Revenue at Calcutta. Therefore, he sued the Raja in the Supreme Court and filed an affidavit in August 1779 which stated that the Raja was employed in the collection of revenue and, thereofere, amenable to the Court’s jurisdiction. The Collector of Midnapore, in whose district the Raja resided, informed the Governor-General in Council about this development and said that the Raja was hiding himself in order to avoid service of the writ to a great loss of the revenue. The council, after having obtained the opinion of the Advocate General, issued notification to all land holders informing them that they were under no obligation to pay any attention to the process of the Court unless they were servants of the Company or had subjected themselves by their own consent to the jurisdiction of the Court. A special direction to the same effect was issues to the Raja of Cossijurah, who thereupon took no notice of the further process of the Court. His people drove away the Sheriff and his officers when they tried to arrest him under writ of capias. The Supreme Court, thereupon, issued another writ to sequestrate the property of the Raja to compel his appearance. The Sheriff with a small armed force of men marched to Cossijurah in order to execute the writ, seized the person of the Raja violently outraged the sanctity of the family idol and broke into the zenana. In the meanwhile, the English Commander of troops at Midnapore marched with a force of sepoys against teh Sheriff’s party and arrested them in execution of the orders of teh Governor-General in Council. The process to arrest the Commander for teh Contempt was also prevented by military force.
A farmer was committed to prison by the Revenue Authority at Calcutta for non-payment of revenue arrears. But, he was released by the Supreme Court, The Govt., (Supreme Council) criticised this and declared that the court had no powers to deal with revenue cases. Hence, the Govt,, was asserting its power. In a letter to the Court of Directors, Chief Justice, Impey stated that’ when arrests were • made for non payment of revenues, bail “was usually granted and so the Supreme Court had a right to give the ‘directives to release on bail. The Court was protecting the subject from oppression, It was compelling the officers to follow- the established customs and usages in revenue collections.
The Patna Case
An impartial examination of the case demonstrates that gross anomalies were conferred by the commonplace committee in giving this case.the law officer were just to elucidate the law and choose question of certainty yet the court found that they were endowed with the whole work of examination. They ought not have analyzed the witnesses themselves as this was crafted by the judge of the common gathering.
The Patna case additionally uncovered the shortcomings of the organization legal organization ,especially that of the sadar diwani adalat at calcutta in light of the fact that the senator general and the individual from the gathering, who constituted the court barely had whenever to take care of the legal work of choosing claims as they were for the most part possessed with different works and avenging their shared competitions.
As respects the ward of the preeminent court over the Mohammedan local law officers, it was held that these officers being in the administration of the organization , the court had purview over them. this view has all the earmarks of being right. be that as it may, the preeminent courts dispute that it additionally had ward over Bahadur ask who was an agriculturist of land income of the organization and henceforth a worker of the organization , does not have all the earmarks of being right. the supreme courts choice in Patna case holding that an agriculturist of land income was to be dealt with in the administration of the organization and consequently fell inside the ward of the court, made dread and frenzy among the local ranchers of Bengal, Bihar, and Orissa. along these lines this case had an adverse affected the income winning of the organization in Bengal, Bihar and Orissa. the weaknesses of the organization of the incomparable court and the preeminent committee which became known through the Patna Case were, anyway , evacuated by the death of the Act of Settlement in 1781.
Act of Settlement In 1781
The demonstration was passed to cure the deformities of Regulating Act of 1773 as the Government was confronting difficulties in the assignment of gathering income . The preface of the Act Stated: ‘though it is practical the legal Government of Bengal, Bihar and Orissa ought to be bolstered,’ Therefore the Act made arrangements which were more positive to the Governor general and the Council will not together and severally be Subject to the ward of the Supreme Court for any demonstration done by them in their official limit. The most essential arrangement from the perspective of Hindus and Mohammedans was Section 17,which expressed that ‘all issue emerging out of legacy and progression to land and products and matters of agreements be resolved by individual laws of the separate gatherings’. assist limitation were put by the Act on the ward of the Supreme Court to engage any issue concerning income or concerning any demonstrations done in the accumulation of income there by giving full insurance to the Government in income matters. All zamindars , arrive holders and agriculturists who paid land in come to the Government were put out ward .But the incomparable Court was enabled to have purview in activities for wrong or trespass and in common situations when parties had concurred in writing to submit for their situation to the Supreme Court willfully . The demonstration offered acknowledgment to the Company’s court to be specific, Sadar Diwani and Fauzdari Adalat and gave the sadar Diwani Adalat (Governor and Council) will be a re-appraising Court to Hear claims from the choice of the Mofussil Courts in common cases. Its judgment were to be last upto Rs.5000/ – yet in the event that the topic was, of Rs.5000/ – or increasingly a further interest was given to the committee. In this manner the organization’s courts were expedited an indistinguishable balance from that of Supreme Court. The critical of this arrangement can be judged in the light of the choice given by the Supreme Court in the Patna Case. It was nullification of the approach received by the Court all things considered which influenced unfavorably the lesson of the legal officers of the Company’s court.
Ultimately, before the Act of 1781 the Supreme Court was meddling in the working of the Mofussil Court set up by the Company to direct equity among the people dwelling in the Mofussil territories situated outside the city of Calcutta.
After consulting the local Governments and as the Patna Case was considered as one of the eminent cases in the subject of legal history of India. It has provided the knowledge of the aspect that during the performance of any duty or authority which is given to any legal official should be performed or conducted within the ambit of their specified field. The case of Kamaluddin has also dealt with a situation in which the officials had been authorized by the court of law to investigate into the matter of Nadirah Begum and Bahadur Beg to find out the documents and other related information to the case, although during this procedure the officials i.e Kazi and Mufti had bad behavior and conduct towards Nadirah Begum while entering her house and performance of assault, battery and false imprisonment. keeping all that in mind whereby after seeing all this Supreme Court gave the judgement in favor of Nadirah Begum and these officials were charged with the Punishment of imprisonment along with the fine of Rs. 3 Lakhs to Nadirah Begum. Over all this mishap, Supreme Court gave the right decision or verdict which was able to maintain the trust of citizens in judiciary. The Government of India had arrived at the conclusion that the time had come for modifying the existing law and removing the existing bar upon the investment of native Magistrates in the interior with powers over European British subjects. The Government of India accordingly decided to settle the question of jurisdiction over European British subjects in such a way as to remove from the Code of Criminal Procedure, at once and completely, every judicial disqualification was based merely on race distinction. The Anglo-Indian Community, as referred to above, and the Anglo-Indian Press, chiefly.
The English-man and The Statesman, started propaganda against the equalising Bill, and a European Defence Asso ciation had been formed to agitate the promulgation of the equalising law. The necessary amendment to the Indian Code of Criminal Procedure was proposed by the Government of India and secured the sanction of the authorities in England on 2 February, 1883. Opinions in favour of the Bill of the eminent judges of the High Courts and professors and administrators could not however prevail against the sentiments expressed in opposition to the Bill (301). It had to be provided, therefore, that only those Indian Judges and Magistrates who would be made Justices of the Peace could wield jurisdiction over the European and American offenders, though the new law did not material ise in its effect. The law was subsequently revised so as to enable the Indian accused to claim to be tried by a majority of his countrymen as jurors x just as the European British subjects could. The European and American citizens could claim the same privilege if a large number of jurors of their own nationality were available. In any case they could claim to be tried by jurors whose majority consisted of whitemen.
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