History of Courts Notes | B.A. LL.B. (Five Year Course) Semester 3 | Mumbai University | munotes

An Act of Parliament is a statute passed by the Parliament at Westminster. From 1773 onwards Parliament legislated for India directly, and the Regulating Act, the Charter Acts, the Indian Councils Acts, the Government of India Acts and the Indian Independence Act are all Acts of Parliament. Several of them are called "Charter Acts" because they renewed the Company's charter, which is a name that has confused generations of students. A Charter Act is an Act of Parliament, not a charter.

A regulation was a law made in India by the Governor-General in Council for the Company's own territories. Cornwallis's forty-eight regulations of 1793 are the famous example. They were not Acts, because until 1833 the Indian legislature could not make Acts; they were subordinate law, made under a power given by an Act.

Jurisdiction means the authority of a court: what it may decide, over whom, and where. Almost every dispute in Module I is a dispute about jurisdiction, and it is worth noticing early that jurisdiction has three separate dimensions. There is jurisdiction over subject matter (may this court hear a revenue case at all?), over persons (may it summon this defendant?), and over territory (does its writ run in this district?). The Supreme Court at Calcutta and the Governor-General in Council quarrelled about all three at once.

Original jurisdiction means the power to hear a case for the first time, as a trial court. Appellate jurisdiction means the power to hear an appeal against another court's decision. A single court can have both, and in India the High Courts do: that is exactly what the Act of 1861 gave them, because it merged a trial court with an appellate one.

A Presidency Town meant Madras, Bombay or Calcutta: the three settlements where the Company had its headquarters, each under a President and Council. The mofussil meant everywhere else, the interior, the country districts. That single distinction runs through the whole of Modules I and II. For a century, English law and King's courts applied in the Presidency Towns and Indian law and Company courts applied in the mofussil, and the boundary between them was the source of every quarrel in this paper.

A Crown court was a court created by the Crown's charter, whose judges were appointed by the Crown and whose authority came from the King. A Company court was created by the Company, staffed by the Company's servants, and answerable to the Company. The Mayors' Courts of 1726 were Crown courts, because a royal charter created them. The Adalats of 1772 were Company courts. The Supreme Court of 1774 was a Crown court and the Sadar Diwani Adalat was a Company court, and that is why they could not be made to agree.

Two more words you will meet constantly. The Diwani was the right to collect the revenue of a province and to administer civil justice in it; it was a Mughal office, and the Company obtained it for Bengal, Bihar and Orissa in 1765. The Nizamat was the criminal side of the same government: the maintenance of order and the punishment of crime. Diwani courts are therefore civil courts and Nizamat courts are criminal courts, and the Sadar Diwani Adalat and the Sadar Nizamat Adalat are the chief civil and chief criminal courts of the Company's territories.

How this book is arranged, and why in this order

The book follows the University's own four modules and its own order, which is not chronological and is not meant to be.

Module I is the beginning: the charters from 1600, the Mayors' Courts, Warren Hastings's plans, the Regulating Act of 1773 and the Supreme Court it created, the seven famous proceedings that showed what was wrong with it, the Settlement Act of 1781 that answered them, and Cornwallis's three judicial plans.

Module II is the consequence: two systems of courts in one country, how they collided, how the Indian High Courts Act 1861 ended the split, and the appeal to the Judicial Committee of the Privy Council in London that sat above everything until 1949.

Module III jumps to 1950 and asks what the Constitution made of all this: the Supreme Court, the High Courts, the subordinate courts, the writs, and the three ideas the whole structure is supposed to serve, the rule of law, the independence of the judiciary and the separation of powers.

Module IV goes back to the beginning twice more, once to follow the legislature from the Charter of 1600 to the Indian Independence Act 1947, and once to follow the legal profession from pre-British India to the Advocates Act 1961 and the law reports.

So you will meet the Charter of 1600 in chapter 2 and again in Module IV, and the Government of India Act 1935 in Module II and again in Module IV. That is not repetition. The same document is being read for two different questions: what did it do to the courts, and what did it do to the legislature.

The one date that organises everything else

If you remember nothing else from this chapter, remember this. India did not have one system of courts until 1861.

From 1726 there were King's courts in the three Presidency Towns applying English law. From 1772 there were Company courts in the mofussil applying Hindu law to Hindus and Muslim law to Muslims. Those two systems ran side by side for nearly ninety years, with different judges, different procedure, different law, and separate appeals to London. Everything in Module I is about how the two came into existence and collided; the first half of Module II is about how they were finally merged.

A worked example

You are asked, in an examination, "Trace the development of the courts in India from 1600 to 1950." That is the whole paper in one line, and here is how a student who has read this book would build the answer.

Fix the two systems and the date they end. English law and King's courts in the Presidency Towns; Indian law and Company courts in the mofussil; and 1861, when one court replaced both.

Then take the King's side in order. The Charter of 1600 and the power to make law; 1661, the power to judge all persons living under the Company according to the laws of England; 1687, the first Mayor's Court at Madras under the Company's seal; 1726, Mayors' Courts at all three towns under the Great Seal, with an appeal to the King in Council; 1753, the amended charter; 1773 and 1774, the Regulating Act and the Supreme Court at Fort William; 1781, the Settlement Act.

Then take the Company's side. Hastings's plan of 1772 and the Adalats; the plans of 1774 and 1780; Cornwallis in 1787, 1790 and 1793.

Then join them. The conflict of the two systems, the Indian High Courts Act 1861, the letters patent of 1865, and the appeal to the Privy Council until 1949.

Then finish under the Constitution. The Supreme Court, the High Courts, the subordinate courts, the writs, and the three ideas of Module III.

Notice what the answer is made of: dates attached to instruments, and instruments attached to institutions. That is what this subject rewards, and it is why every chapter in this book names the charter, the Act or the regulation it is about in its own heading.

What beginners get wrong

"The Company was given the power to hold courts in 1726." No. The power to make laws and impose punishments was in the Charter of 1600 itself, and courts of a kind existed at Madras from 1687. What 1726 did was to create Crown courts on a uniform pattern at all three settlements.

"The Supreme Court at Calcutta became the Supreme Court of India." No. The Supreme Court at Fort William was abolished in 1862, when the Calcutta High Court replaced it. The Supreme Court of India was created by the Constitution in 1950, out of the Federal Court. The two are different institutions with the same name, ninety years apart.

"British India had no rule of law." Too simple, and the paper will not reward it. British India had courts that decided against the Government, and a Council that once sent sepoys to stop a sheriff. Module III asks you to weigh both, which is a different exercise from choosing a side.

Quick revision

• The subject runs from the Charter of 1600 to the Constitution of 1950, in four modules.
• A charter is a Crown grant, also called letters patent; an Act is passed by Parliament; a regulation was made in India under a power given by an Act.
• Presidency Towns are Madras, Bombay and Calcutta; the mofussil is everywhere else.
• Diwani is civil and revenue; Nizamat is criminal.
• Crown courts came from a royal charter; Company courts were the Company's own.
• Two separate systems of courts ran from 1772 to 1861, and 1861 is the date they were merged.

Test yourself

1. What is the difference between a charter and a Charter Act? A charter is a grant by the Crown under the Great Seal, creating a corporation or a court or a privilege. A Charter Act is an Act of the British Parliament renewing the Company's charter, and is a statute. The Charter of 1726 is a charter; the Charter Act of 1833 is an Act of Parliament.

2. What did "mofussil" mean, and why does it matter to this paper? Everywhere in the Company's Indian territories outside the three Presidency Towns. It matters because for nearly ninety years the law and the courts in the mofussil were entirely different from those in the Presidency Towns, and the boundary between them produced the disputes in Module I and the reform in Module II.

3. Name the two dimensions of jurisdiction that the Supreme Court at Calcutta and the Governor-General in Council quarrelled about. All three, in fact: subject matter (whether a revenue matter could be examined by the Court at all), persons (who counted as being in the Company's service, and so suable), and territory (whether the Court's process ran outside Calcutta).

4. Why is the same document, the Charter of 1600, taught twice in this book? Because MU's syllabus asks two questions of it. Topic 1.1.1 asks what it did for the administration of justice; topic 4.1.1 asks what it did for the legislature. It granted both powers in the same sentence.

The repugnancy rule, and why it never went away

Two conditions were imposed, and it is worth separating them because students commonly merge them into one.

1. The law made must be reasonable.
2. It must not be contrary or repugnant to the laws, statutes or customs of England.

The second condition is called the rule against repugnancy, and it is the first restriction ever placed on law-making for India. A rule made by the Company that contradicted English law was void.

That rule outlived the Company by a century and a half. The Charter Act of 1833 gave the Indian legislature power to make laws that had the same force as Acts of Parliament, but only subject to restrictions; the Indian Councils Act 1861 listed what the Council could not touch; the Government of India Act 1935 provided for repugnancy between Federal and Provincial laws; and article 254 of the Constitution of India is a repugnancy clause today. The idea that a subordinate legislature's law fails where it conflicts with a superior law starts here, in a charter granted to a spice-trading corporation.

What the charter did NOT do

It gave the Company no power over anybody except its own members and servants. A merchant of Surat, a weaver of Bengal or a servant of the Mughal Emperor was outside it entirely. The Company had no territory, no subjects and no jurisdiction over anyone but its own employees, and would have none for sixty years.

It created no court. The power to fine and imprison had to be exercised by somebody, and in practice it was exercised by the Governor and Council of a factory. A factory, in this subject, is not a place where things are manufactured: it is a trading post, the place where the Company's factors, meaning its agents, lived and did business. Surat was a factory; so was Madras before it became a fortified settlement.

It gave no power to punish crime. Fines and imprisonment for breaches of the Company's own orders are a long way from trying a man for murder, and the Company spent most of the next century acquiring, charter by charter, the criminal powers it needed. That story is the next chapter.

A worked example

Imagine a Company servant at Surat in 1615, a factor named Thomas Aldworth, who trades privately on his own account in defiance of the Company's standing orders.

Under the charter the Company's general assembly in London may make an ordinance forbidding private trade. That ordinance may impose a fine, or imprisonment, on a servant who breaks it. The President and Council at Surat may then fine Aldworth, or confine him, and ship him home.

Now change the facts. Aldworth kills a fellow factor in a quarrel. Nothing in the Charter of 1600 permits the President and Council to try him for murder or to hang him. The power granted is over the Company's own discipline, and homicide is not a matter of Company discipline. In practice such a man had to be sent to England for trial, which across a voyage of six months was no remedy at all. Closing that gap took the Company most of a century, charter by charter: the charter of 31 May 1609 confirmed and extended the Company's privileges without altering its constitution, twenty-four more followed between 1609 and 1639, and the powers that made a real criminal jurisdiction possible came with the charter of 1661 and the Admiralty charters of 1683 and 1686. Those are the next chapter.

Distinctions worth having straight

What beginners get wrong

"The Charter of 1600 established the East India Company's courts in India." It did not. It gave a power to make rules and to punish breaches of them. Courts, in any sense a lawyer would recognise, arrive with the Charter of 1661 and, on the civil side, with the Madras charter of 1687.

"The monopoly was permanent." It was granted for fifteen years, renewable, and it was renewed and enlarged many times. It ended piece by piece: for India by the Charter Act of 1813 and altogether by the Charter Act of 1833.

"Repugnancy meant the Company had to apply English law in India." No. It meant the Company's rules could not contradict English law. Applying English law to inhabitants of India is a much later and much more contentious development, and it arrives with the Mayors' Courts.

Limits and criticism

The charter is a commercial instrument and reads like one. Its drafters were thinking about ships, customs duties and bullion exports, not about justice. The power of legislation is squeezed into one clause among many, and the words "reasonable" and "not repugnant" are the only guidance given about how it was to be used. For a body that would in time govern a subcontinent, that is a slender foundation, and the looseness is not accidental: nobody in 1600 imagined it would ever be needed for more than a few hundred men in a few trading posts.

The deeper criticism belongs to Module IV rather than here. A power to legislate for India was granted by an English Queen to an English corporation without a single Indian being consulted, and the same fact is true of every instrument in this book until the Indian Councils Act 1861 and, in any real sense, until much later than that.

Quick revision

• Granted 31 December 1600 by Queen Elizabeth I.
• Incorporated "The Governor and Company of Merchants of London, Trading into the East Indies", with perpetual succession and a common seal.
• Monopoly of trade beyond the Cape of Good Hope, for fifteen years.
• Power to make "Laws, Constitutions, Orders and Ordinances" and to impose imprisonments, fines and amerciaments.
• Limited by the repugnancy rule: the laws must be reasonable and not contrary or repugnant to the laws, statutes or customs of England.
• Power extended over the Company's own servants only. No court, no territory, no criminal jurisdiction over strangers.

Test yourself

1. State the two conditions the Charter of 1600 attached to the Company's power of legislation. That the laws be reasonable, and that they be not contrary or repugnant to the laws, statutes or customs of England.

2. Over whom could the Company exercise the powers granted in 1600? Over its own members and servants only. It had no authority over Indians, over servants of the Mughal Emperor, or over Englishmen not in its employment.

3. Why is the repugnancy rule important beyond 1600? Because it is the first limit ever placed on law-making for India, and the same idea reappears in every constitutional instrument down to article 254 of the Constitution.

4. Was the Charter of 1600 a statute? No. It was a grant by the Crown under the Great Seal, that is, letters patent. Parliament did not begin legislating for India until 1773.

5. If a Company servant at Surat in 1620 committed murder, could the President and Council try and hang him under the Charter of 1600? No. The charter gave power to fine, imprison and amerce for breaches of the Company's ordinances, not to try capital crime. Criminal powers were acquired in later charters, beginning with 1615 and enlarged in 1661 and 1683.

What matters for this paper is not the year but the point chapter 20 made about the Charter of 1600: a factory is a trading post, not a jurisdiction. The Company's men at Surat lived under the Mughal Emperor's government and under the Company's own ordinances as against each other, and it was the Charter of 1661 that first gave a Governor and Council power to judge all persons living under them.

The Charter of 1609, and the twenty-four that followed

James I confirmed and extended the Company's privileges by the charter of 31 May 1609, making the trade monopoly perpetual instead of terminable at fifteen years, but making no remarkable alteration in the Company's constitution. Twenty-four further charters were granted between 1609 and 1639, and none of them changed the judicial position.

It is worth knowing that the monopoly itself was challenged and upheld. The Court of King's Bench decided in favour of the Company in East India Company v. Sands, known as the great case of monopolies, on the narrow ground explained in a later case that the charter only prohibited trade with infidels, with whom the King's subjects were not to communicate without his licence. We name the case for that single point and no more; our source records the decision and its ground, not its reasoning.

The Charter of 1661: the turning point

The charter of 3 April 1661 (13 Charles II) is the one to remember from this chapter, and the reason is a single grant of power.

Until 1661 the Company's charters had conferred nothing that could not have been given to any ordinary trading company. The Charter of 1661 gave privileges of an entirely new kind. It placed the Company's factories under its own Governors, authorised it to appoint Governors and other officers, and gave the Governor and Council of each settlement power to judge all persons living under them, in all causes whether civil or criminal, according to the laws of England, and to execute judgment accordingly.

Read that clause slowly, because four things in it are new.

1. All persons living under them, not only the Company's servants. For the first time an Indian resident of a Company settlement was within the Company's judicial power.
2. All causes, civil or criminal. Not merely fines for breaches of the Company's orders: theft, assault, debt, contract, homicide.
3. According to the laws of England. The law to be applied is named, and it is English law.
4. And to execute judgment. A power to sentence is worth nothing without a power to carry the sentence out, and it is given expressly.

A worked example: how a settlement used the power

The clause sat unused at Madras for seventeen years, which is itself instructive: a power in a charter is not a court until somebody sets one up.

On 18 March 1678, the inhabitants of Madras having greatly increased and complaints having been made that there was no way of deciding cases beyond the reach of the existing petty court, the Agent and Council resolved that under the Charter of 13 Charles II they had power to judge all persons living under them in all cases, civil or criminal, according to English law. They resolved that the Governor and Council should sit in the Chapel in the Fort every Wednesday and Saturday to hear and judge all causes, and that the Justices of the Choultry and the constables under them should execute the court's orders, meaning its writs, its summonses for jurymen, its executions after judgment and its arrests of criminals.

That body is sometimes called the High Court of Judicature at Madras, and it is a court in every ordinary sense: fixed sitting days, a place, a defined jurisdiction, jurors, process and officers to execute it.

It did not replace what already existed. A Choultry was a public building in a south Indian town, used as a resting place and as a court, and the Court of the Justices of the Choultry at Madras had been deciding small matters for years: small misdemeanours, breaches of the peace, and actions for debt not exceeding fifty pagodas. A pagoda was a gold coin of southern India, and the figure fixes the Choultry court as a small-causes court. It kept that work after 1678.

So by 1678 Madras had two courts: a superior court of the Governor and Council for serious civil and criminal causes, and an inferior court of the Justices of the Choultry for small ones. That two-tier shape is the shape the Charter of 1726 would give to all three settlements.

Bombay: territory, and a court for it

The island of Bombay came to Charles II from the crown of Portugal as part of the dowry of Catherine of Braganza, whom he married in June 1661. The King found it expensive to hold, and granted it to the Company in 1668, in the twentieth year of his reign.

Bombay therefore differs from Madras and Calcutta in a way worth noticing: it came to the Company as territory of the Crown transferred to the Company, not as a settlement acquired from an Indian ruler. The Commissioners sent from Surat to take possession asked for a Judge Advocate to be appointed, because the inhabitants were accustomed to the civil law, that is, the Roman-based law the Portuguese had administered.

As a temporary measure two courts were formed: an inferior court of a Company civil officer assisted by Indian officers, taking cognisance of disputes under two hundred xeraphins (a silver coin of Portuguese India), and a superior court of the Deputy Governor and Council whose decisions were to be final and without appeal except in cases of the greatest necessity. The Court of Committees in London approved the plan generally, asked that trial by jury be introduced, and declined to appoint a judge learned in the civil law, fearing that such a person might promote litigation and might not obey orders.

That refusal, and the reason given for it, is the theme of the whole of Module I in one sentence. The Company wanted courts, and did not want judges it could not control.

The Admiralty charters of 1683 and 1686

The charter of 9 August 1683 (35 Charles II) authorised the establishment of Courts of Admiralty at such places as the Company should think fit. Admiralty jurisdiction is jurisdiction over maritime matters, principally over ships, seamen, freight, salvage and, importantly for the Company, prize, meaning enemy ships and cargo captured at sea and condemned by a court before they can lawfully be sold. The charter of 12 April 1686 (2 James II) reconstituted those courts and extended their jurisdiction.

Two things follow from these charters that matter to this paper.

First, they brought the first professional lawyers from England to hold judicial office in India. A Judge Advocate was the judge of such a court. Dr John St John, the only person learned in the civil law sent out under the 1683 charter, was appointed judge of the court at Surat, to which Bombay was then subordinate, by a commission from the King of 6 February and one from the Company of 7 April 1684. Sir John Biggs, formerly Recorder of Portsmouth, was appointed Judge Advocate at Madras under the charter of 1686.

Second, and more revealing, both men fell out with the Governors at once. Dr St John became involved in disputes with Sir John Child, the Governor, who confined his jurisdiction to maritime cases and appointed a Mr Vaux to be judge in civil actions. At Madras, because no Judge Advocate had arrived, the President of the Council was appointed to fill the office, which caused such dissatisfaction that the President and Council resolved instead to continue the old court under the Charter of 13 Charles II until a Judge Advocate should arrive, which did not happen until 1687.

Distinctions worth having straight

What beginners get wrong

"The Company got the power to try criminal cases in 1726." It got it in 1661. What 1726 supplied was a uniform court structure created by the Crown rather than by the Company.

"The Charter of 1661 created courts." It created a power. Madras acted on it in 1678, seventeen years later, and only after complaints from the inhabitants. A charter is an authority to act, not the act.

"Admiralty courts were about shipping and so are irrelevant to a history of courts." They are relevant for two reasons: they were the first courts in India presided over by a trained judge sent from England, and the pattern of what happened to those judges, sidelined by the Governor within a year, is the pattern that repeats in 1780 on a much larger scale.

Limits and criticism

The judicial arrangements of this period have one incurable defect and it is not a technical one. In every settlement the judge was, or was appointed by and removable by, the executive that was also the Company's trading management. The Governor sat as judge in the morning and bought pepper in the afternoon, and the parties before him were frequently his own colleagues, his subordinates, or the Company itself.

The Court of Committees said so in terms when it refused Bombay a civil lawyer: such a person might promote litigation and might not obey orders. A judge who obeys orders is not exercising judicial power, and the Company understood that perfectly well. It preferred obedience, and would go on preferring it until Parliament took the choice away in 1773.

Quick revision

• The Company's first factory in India was at Surat, the Mughal Empire's chief western port; the year is not settled in the sources here, 1612 to 1613 being the years usually given.
• 31 May 1609, James I: privileges confirmed and extended, monopoly made perpetual; no change in judicial powers. Twenty-four further charters to 1639.
• 3 April 1661, Charles II: power to judge all persons living under them, in all causes civil or criminal, according to the laws of England, and to execute judgment. The turning point.
• 1668: Bombay granted to the Company by Charles II, having come to the Crown in Catherine of Braganza's dowry. Two courts formed there; London asked for trial by jury and refused a civil lawyer.
• 18 March 1678: Madras acts on the 1661 charter. Governor and Council sit in the Fort chapel on Wednesdays and Saturdays. The Justices of the Choultry keep small causes up to fifty pagodas.
• 9 August 1683 and 12 April 1686: Courts of Admiralty; the first professional judges in India, Dr John St John at Surat and Sir John Biggs at Madras. Both were sidelined by the Governors.

Test yourself

1. What exactly did the Charter of 1661 add to the Company's powers? Power in the Governor and Council of each settlement to judge all persons living under them, in all causes whether civil or criminal, according to the laws of England, and to execute judgment. It extended the Company's judicial reach from its own servants to everybody in its settlements, and it named English law as the law to be applied.

2. Why did seventeen years pass between the Charter of 1661 and the Madras resolution of 1678? Because a charter confers a power and does not exercise it. The Agent and Council acted only when the population had grown and complaints were made that cases beyond the Choultry court's small jurisdiction could not be decided at all.

3. What was the Court of the Justices of the Choultry, and what was left to it after 1678? The petty court of Madras, sitting in the choultry. After 1678 it retained small misdemeanours, breaches of the peace, and actions for debt not exceeding fifty pagodas.

4. Name the two professional judges sent to India under the Admiralty charters, and say what happened to each. Dr John St John, judge of the court at Surat from 1684, whose jurisdiction Governor Sir John Child confined to maritime cases while appointing Mr Vaux to try civil actions; and Sir John Biggs, Judge Advocate at Madras under the charter of 1686, who arrived only in 1687 and was made Recorder of the new Mayor's Court there.

5. What does the Court of Committees' refusal to send a civil lawyer to Bombay tell you about the Company's idea of a judge? That it wanted a court whose decisions it could predict and whose officer would obey its orders. It gave both reasons openly: that a trained lawyer might promote litigation and might not obey the orders sent to him.

The Company's seal, and why it decides everything

The most important fact about the 1687 charter is not in its terms. It is in how it was issued.

At a Cabinet Council held on Sunday 11 December 1687, the question was discussed whether this charter should proceed from the King under the Great Seal of England. The Governor of the Company was commanded to attend, and advised against it. His reason is worth having in mind for the rest of Module I: he said that no person in India should be employed by immediate commission from His Majesty, because "the wind of extraordinary honour in their heads" would probably make such men so haughty and overbearing that the Company would have to remove them, as had happened with Dr St John and Sir John Child.

The King agreed, on the footing that if the charter went under the Company's seal the corporation would always be in some measure subject to the control of the Company's President and Council. And so it was settled.

That single decision is the difference between 1687 and 1726, and the consequences run through the whole paper.

A court set up by the body it is expected to judge is not independent of that body, and the Company said in terms that this was the object. A court set up by the Crown is a different thing, and the men who sit on it know it.

A worked example

Take two disputes, forty years apart, and follow each.

Madras, 1690. A Portuguese merchant sues an English factor for the price of goods. The suit is heard by the Mayor and Aldermen under the 1687 charter. If the merchant is dissatisfied, his complaint lies within a structure the Company controls, because the corporation itself exists at the Company's pleasure under the Company's seal. If the factor is a servant whom the President wishes to protect, the President is not without means.

Madras, 1730. The same dispute is heard by the Mayor's Court under the Charter of 1726. If the merchant is dissatisfied, he appeals to the Governor in Council; if the value exceeds one thousand pagodas, he may appeal from there to the King in Council in England. The Company's servants in Madras cannot stop that appeal, because neither the court nor the appeal is theirs to control. That is what a Crown court adds.

What beginners get wrong

"The Mayor's Court was established in 1726." The first one was established at Madras in 1687. The 1726 charter established three Mayors' Courts, at Madras, Bombay and Calcutta, on a uniform pattern, and, decisively, made them Crown courts. Say both, in that order, and the answer is complete.

"The 1687 court was a royal court because it was called a Mayor's Court." No. It was granted under the Company's seal, deliberately, so that the corporation would remain subject to the Company's President and Council.

"A Court of Record just means a court that keeps records." It means more: a court of record's proceedings are enrolled as a permanent memorial and it has an inherent power to punish contempt. Every Mayor's Court in this book, and every High Court in Module II, is a court of record, and article 129 of the Constitution says the same thing of the Supreme Court today.

Limits and criticism

The 1687 court had two defects and they are worth stating plainly because they are the defects the 1726 charter was meant to cure and did not.

The judges were merchants. A Mayor and twelve Aldermen drawn from the trading community of Madras, sitting with one professional Recorder, were not trained in law, and after Sir John Biggs died the Recordership lapsed and the court sat without any lawyer at all.

And its authority was doubtful outside the settlement. A charter under the Company's seal could confer no more than the Company itself possessed, and what the Company possessed came from the Charter of 1661: a power over persons living under it. Nothing in that reaches a Mughal subject at Madras who was not living under the Company, and the point was never squarely settled.

Quick revision

• Charter dated 30 December 1687 (3 James II), published at Madras 29 September 1688.
• Created a Municipal Corporation at Madras: a Mayor, twelve Aldermen, sixty or more Burgesses.
• The Mayor and Aldermen were a Court of Record: the first Mayor's Court in India.
• Sir John Biggs, formerly Recorder of Portsmouth, was its Recorder.
• Issued under the Company's seal, not the Great Seal, deliberately, after a Cabinet Council on 11 December 1687, so that the corporation would remain subject to the Company's President and Council.
• The Aldermen were deliberately mixed in community; London's 1692 attempt to widen them further failed for the reasons recorded above.

Test yourself

1. When and where was the first Mayor's Court in India established? At Madras, by a charter dated 30 December 1687, published there on 29 September 1688. It was thirty-nine years before the Charter of 1726, which a student who reads only MU's topic label will misdate.

2. Under what seal was the 1687 charter granted, and why does it matter? Under the Company's seal, not the Great Seal. It matters because a grant under the Company's seal made the corporation and its court subject in some measure to the Company's own President and Council, whereas a grant under the Great Seal creates a Crown court which the Company cannot control. The reason was given openly at a Cabinet Council on 11 December 1687.

3. What is a Recorder, and who was the first at Madras? A lawyer appointed to sit with a mayor and aldermen and supply the legal knowledge they lack. Sir John Biggs, formerly Recorder of Portsmouth and Judge Advocate at Madras under the Admiralty charter of 1686.

4. Give one reason the 1687 court could not be a satisfactory court of justice. Its judges were merchants of the settlement with no legal training, sitting in a court created by, and subject to, the body whose servants were frequently before them. The single professional member, the Recorder, was not replaced after the office lapsed.

What the Mayor's Court could do

Civil suits. The Mayor's Court, or any three of them of whom the Mayor or senior Alderman had to be one, could try, hear and determine all civil suits, actions and pleas between party and party arising within the town or within any factory subordinate to it.

Probate and administration. It could grant probate of wills, that is, the court's certificate that a will is valid and that the executor named in it may act, and letters of administration, the corresponding authority given to somebody to administer the estate of a person who died without a will. That is why so much of the litigation you meet in Module I is about estates: the Mayors' Courts were the probate courts of the Presidency Towns.

Nothing criminal. The Mayor's Court was a civil court. Crime was dealt with separately, and by different people.

The criminal side: Justices of the Peace and Quarter Sessions

The same charter provided that at each place the Governor or President and the five senior members of Council, according to their precedence, should be Justices of the Peace.

A Justice of the Peace is a magistrate: an officer who may commit for trial, take security for keeping the peace, and try small offences. Any three or more of them, the Governor or President or in his absence the senior member of Council being one, might hold Sessions of the Peace, that is, Quarter Sessions, and hold courts of record.

They were also made Commissioners of Oyer and Terminer and General Gaol Delivery. These are two ancient English commissions and the words are worth unpicking because they appear throughout this paper. Oyer and terminer is Norman French for "to hear and determine", and is the commission to try serious crime. General gaol delivery is the commission to try everybody then held in the gaol, so that the gaol is emptied of untried prisoners. Together they amount to full criminal trial jurisdiction.

So the shape of justice in a Presidency Town after 1726 is this: a civil court of merchants sitting as the Mayor's Court, and a criminal court of the Governor and his Council sitting as Justices and as Commissioners of Oyer and Terminer. The executive government of the settlement was the criminal court. Remember that when you reach the Regulating Act, because it is exactly what Parliament decided in 1773 had to stop.

The appeal, in two steps

Step one. Any person aggrieved by a judgment, sentence or decree of the Mayor's Court might appeal to the Governor or President and Council, who were themselves constituted a Court of Record for the purpose of receiving and determining such appeals. No person interested in the suit was to sit as judge on the appeal; where the voices were equal, the Governor or President had two voices.

Step two. The determination of the Governor in Council was final if the debt, damages or matter in dispute did not exceed 1,000 pagodas. If it exceeded 1,000 pagodas, the party aggrieved might, within fourteen days after the appellate decree was entered of record, appeal to the King in Council, "as is usual in cases of appeal from any of Our Colonies in the West Indies", on giving security to pay the sum adjudged with interest at eight per cent and the costs of the appeal.

A pagoda was a gold coin of southern India, so 1,000 pagodas was a substantial sum. The effect was that ordinary litigation ended in India and only large cases crossed the sea.

A worked example

Ramchandra, a Hindu merchant of Calcutta, sues Mr Holwell, an English trader of the same town, for the price of saltpetre delivered in 1730. The claim is for 1,500 pagodas.

1. The suit is filed in the Mayor's Court of Calcutta. Three of its members, the Mayor being one, hear it. Neither party is a member of the court, so nobody has to withdraw.
2. The court gives judgment for Ramchandra.
3. Holwell appeals to the Governor and Council at Fort William, sitting as a Court of Record. If any councillor has an interest in the saltpetre contract, he does not sit.
4. The Council affirms. The sum exceeds 1,000 pagodas, so Holwell may appeal to the King in Council within fourteen days of the decree being entered, giving security for the sum, interest at eight per cent and costs.
5. That appeal is heard in London, before the King in Council, and the decision binds the courts at Calcutta.

Now change one fact. The claim is for 700 pagodas. The Council's decision is final, and no appeal lies to England.

The one silence that caused everything afterwards

Ask the obvious question: what law was the Mayor's Court to apply to a Hindu merchant and an English trader?

The charter does not say. It creates courts, gives them jurisdiction over "all civil suits between party and party", and stops. Because these were the King's courts and the judges were Englishmen, they applied English law, which is what an English court naturally does. And because the charter drew no distinction between an English defendant and an Indian one, English law was applied to Indians in the Presidency Towns in matters of contract, of inheritance and of family, in which they had their own law and had always been governed by it.

That silence is the single most consequential feature of the Charter of 1726, and everything MU asks about the next fifty years follows from it: the complaints of the inhabitants, the amended charter of 1753, Warren Hastings's rule of 1772 that Hindus be governed by Hindu law and Muslims by Muslim law, and the provision in the Settlement Act of 1781 that finally said so for the Supreme Court.

Distinctions worth having straight

What beginners get wrong

"The Charter of 1726 introduced the Courts of Requests." It did not. Courts of Requests for small causes came with the amended Charter of 1753, and the next chapter deals with them.

"The Mayor's Court tried criminal cases." It did not. Crime belonged to the Governor and the five senior councillors sitting as Justices of the Peace and as Commissioners of Oyer and Terminer and General Gaol Delivery.

"1726 gave Indians a court of their own law." The reverse. It gave them a court that applied English law to them, which is what the inhabitants complained of and what 1753 partly answered.

"The appeal went to the Privy Council." In 1726 the appeal lay to the King in Council. The Judicial Committee of the Privy Council, as a statutory body with a fixed constitution, was not created until 1833. The destination is the same institution in a loose sense, but the answer is more accurate if you say King in Council for this period.

Limits and criticism

The judges were still merchants, and now they were merchants applying a law they had not studied to people who had never heard of it.

The Company disliked the arrangement from the beginning, and for a reason it did not conceal: a Crown court with an appeal to England was outside its control. Within a generation it had procured an amended charter that took some of that back.

And the criminal jurisdiction was worse than the civil. The Governor and the five senior members of his Council were the executive government of the settlement, its principal traders, and now its criminal court. There was no separation of any kind, and the point was made forcibly by Parliament in 1773 when it created a court whose judges were sent from England and could not be dismissed by the Company.

Quick revision

• Charter of 24 September 1726 (13 George I), granted by George I under the Great Seal: a Crown charter.
• Corporations and Mayors' Courts at Madras, Bombay and Calcutta: Mayor and nine Aldermen, seven of them natural-born British subjects.
• Mayor's Court: civil suits, probate and letters of administration. Courts of Record.
• Governor or President and five senior councillors: Justices of the Peace, holding Quarter Sessions, and Commissioners of Oyer and Terminer and General Gaol Delivery: the criminal court.
• Appeal: Mayor's Court to Governor in Council; above 1,000 pagodas to the King in Council within fourteen days, on security with interest at eight per cent.
• The charter is silent on what law applies, so English law was applied to Indians. That silence is the origin of most of Module I.

Test yourself

1. Why is the Charter of 1726 more important than the Madras charter of 1687, when 1687 came first? Because it was granted under the Great Seal by the King, so the Mayors' Courts were Crown courts beyond the Company's control; because it made the arrangements uniform at all three Presidency Towns; and because it created an appeal to the King in Council in England.

2. Set out the appellate ladder from the Mayor's Court, with the money limit. Mayor's Court, then the Governor or President in Council sitting as a Court of Record, whose decision was final up to 1,000 pagodas; above 1,000 pagodas an appeal lay to the King in Council within fourteen days of the decree being entered, on security for the sum, interest at eight per cent and costs.

3. Who exercised criminal jurisdiction in a Presidency Town after 1726? The Governor or President and the five senior members of Council, as Justices of the Peace holding Quarter Sessions, and as Commissioners of Oyer and Terminer and General Gaol Delivery. They could try all offences except high treason. The Mayor's Court had no criminal jurisdiction.

4. What law did the Mayors' Courts apply, and what does the charter say about it? They applied English law. The charter says nothing at all about the law to be applied, and that silence is why English law came to be applied to Indians in the Presidency Towns in matters governed by their own personal law.

5. What is the difference between "oyer and terminer" and "general gaol delivery"? Oyer and terminer is the commission to hear and determine serious criminal charges. General gaol delivery is the commission to try all prisoners then in the gaol, so that none is left untried. Together they confer full criminal trial jurisdiction.

The occasion was accidental and the reform was not. Madras had to have its court re-created whatever anybody thought of the 1726 scheme. What turned a re-creation into a reform is the second recital: the defects found by experience, which are the three problems set out above.

And the charter provided for the same thing happening again. It made provision for the event of the Company losing for a time the possession of any of its principal settlements, and the provision was needed almost at once: Calcutta was taken by Siraj-ud-Daula on 20 June 1756 and was not recovered until 2 January 1757, by the forces of the Crown and the Company under Colonel Clive and Admiral Watson. Module I's next chapters begin in the Bengal that came out of that.

What the Charter of 1753 did

It reconstituted the courts under the Company's hand. The Mayors' Courts at Madras, Bombay and Calcutta were re-established, again with a Mayor and nine Aldermen, seven of them natural-born British subjects and the other two permitted to be foreign Protestants, subjects of any country in amity with England. The decisive change is in the appointment. Where the 1726 charter had left the corporation to fill its own vacancies, in 1753 an Alderman who died or was removed was replaced by a person nominated by the Governor and Council, and an Alderman might be removed by the Governor or President and Council, subject to an appeal to the King in Council.

It took Indian disputes out of the Mayor's Court. This is the change to remember. The court's civil jurisdiction was granted in the same wide words as before, "all Civil Suits, Actions and Pleas between Party and Party", but with an express exception: "except such Suits or Actions shall be between the Indian Natives of Madraspatnam only, in which Case We will that the same be determined among themselves, unless both Parties shall by Consent submit the same to the Determination of the said Mayor's Court." The same exception was written into the Bombay and Calcutta clauses.

Read it carefully, because two things are being done at once. A suit between two Indians is outside the court unless both of them agree to bring it there. And where they do not agree, the charter does not send them anywhere in particular: it says the matter is to be "determined among themselves", which means by their own caste, community or arbitration arrangements, and it says nothing about what happens if those fail.

It created Courts of Requests. At each of the three settlements a Court of Requests was established, so called because it was the old English name for a small-debts court, "for the providing a more easy and speedy Method for recovering of small Debts". The Governor or President and Council were to appoint not fewer than eight and not more than twenty-four of the principal inhabitants to be Commissioners. Any three or more of them sat every Thursday from ten to twelve in the forenoon, or longer if business required, and heard and determined in a summary way, meaning without the formal pleadings and process of a full court, all suits where the debt or matter in dispute did not exceed five pagodas. The commissioners held office for two years, in rotation. The Mayor's Court was forbidden to proceed on any cause of suit not exceeding five pagodas.

It kept the appellate ladder, with a repair. The appeal from the Mayor's Court still lay to the Governor or President in Council, whose decision was final up to 1,000 pagodas, and above that to the King in Council. Two improvements were made. Where the voices on the appeal were equal, the Governor or President, or in his absence the senior disinterested councillor, had two voices; and where there were not enough disinterested members of Council to hear the appeal at all, the party aggrieved might appeal directly to the King in Council within twenty-one days of the Mayor's Court decree, even if the sum was below 1,000 pagodas. Interest on the security was no longer fixed at eight per cent but at the current rate at the time of the decree.

It made the courts enforce each other's orders. If the Mayor's Court refused or neglected to execute a judgment given on appeal within fourteen days of being asked, the Governor or President and Council were required to execute it themselves.

A worked example

Two Hindu merchants of Calcutta, Gopal and Krishna, quarrel in 1755 over an account. Gopal wants to sue.

Before 1753, he would file in the Mayor's Court, which would try the suit and apply English law to it, whether or not either party had any notion what English law required.

After 1753, the Mayor's Court cannot take the suit at all, because it is between Indian natives only. It becomes triable there only if Krishna also consents. If he does not, Gopal's remedy is whatever his community provides: the arbitration of elders, the caste panchayat, or nothing.

Change the facts. Gopal sues an English trader for three pagodas. The Mayor's Court is forbidden to proceed, because the sum does not exceed five pagodas. He must go to the Court of Requests, where three commissioners will hear him on a Thursday morning and decide the matter summarily.

Change them again. Gopal sues an English trader for 1,200 pagodas and loses in the Mayor's Court. He appeals to the Governor in Council; but four of the councillors have dealings with the defendant and cannot sit, and there are not enough disinterested members left to hear the appeal. Under the 1753 charter Gopal may go straight to the King in Council, within twenty-one days of the Mayor's Court decree.

Distinctions worth having straight

What beginners get wrong

"The 1753 charter abolished the Mayors' Courts." It re-established them. What it altered was who appointed their members, what they could hear, and what was taken away to a smaller court.

"1753 gave Indians their own courts." It did not. It took their disputes out of the Mayor's Court and left them to be "determined among themselves". That is an exclusion, not a provision, and the absence of any forum is one of the reasons the Supreme Court in 1774 found itself dealing with Indians at all.

"The Court of Requests was an appellate court." The opposite: it was the lowest court, for debts of five pagodas or less, sitting one morning a week and deciding summarily.

"After 1753 the Mayors' Courts were Company courts again." Not in form. The charter was still a Crown charter under the Great Seal, and the appeal to the King in Council survived. What changed was the practical control, through the appointment and removal of Aldermen by the Governor and Council. That distinction between the form of a court and the practical control of it is worth carrying into Module III, where the same question is asked about the independence of the judiciary today.

Limits and criticism

The 1753 charter is a settlement in the Company's favour and it should be described as one.

It solved the Company's problem, which was control, more thoroughly than it solved the inhabitants' problem, which was justice. Excluding suits between Indians removed the grievance of English law being applied to them, at the price of leaving them without any court at all in the settlement where they lived. Taking small claims to a court of commissioners sitting for two hours a week was an improvement in speed and a reduction in the quality of the tribunal.

And the criminal side was untouched. The Governor and the five senior members of Council remained the criminal court, which was the arrangement Parliament would find intolerable twenty years later.

Quick revision

• September 1746: the French took Madras, which put an end to the Mayor's Court there; restored in 1749 under the Treaty of Aix-la-Chapelle. The new charter was granted for all three Presidencies because defects had been found by experience in the Charter of 1726.
• Charter of 8 January 1753 (26 George II), amending the Charter of 1726.
• Mayors' Courts re-established; Mayor and nine Aldermen, seven natural-born British subjects, the other two may be foreign Protestants.
• Aldermen now nominated by the Governor and Council, and removable by them subject to appeal to the King in Council.
• Suits between Indian natives only are excluded, to be determined among themselves, unless both parties consent.
• Courts of Requests at each settlement: 8 to 24 Commissioners, any three sitting every Thursday, ten to twelve, deciding summarily, for suits not exceeding five pagodas. The Mayor's Court may not take such a suit.
• Appeal ladder kept: Governor in Council, final to 1,000 pagodas, then the King in Council; plus a direct appeal within 21 days where the Council has no disinterested quorum.

Test yourself

1. Name the three changes the Charter of 1753 made, in one sentence each. It put the appointment and removal of Mayors and Aldermen in the hands of the Governor and Council; it excluded suits between Indian natives only from the Mayor's Court unless both parties consented; and it created Courts of Requests to decide suits up to five pagodas summarily.

2. What happened to a dispute between two Indians in Calcutta after 1753 if one of them refused to consent? The Mayor's Court could not hear it. The charter said such matters were to be determined among themselves, and provided no forum, so the parties were left to their community's own arbitration or to no remedy at all.

3. What was a Court of Requests, who sat on it, and what could it decide? A small-causes court at each Presidency Town, staffed by between eight and twenty-four commissioners chosen by the Governor and Council from the principal inhabitants, any three of whom sat every Thursday from ten to twelve and decided suits summarily where the debt or matter did not exceed five pagodas.

4. In what circumstances could a litigant go to the King in Council in a case worth less than 1,000 pagodas? Where there were not enough disinterested members of the Governor's Council to hear the appeal, so that no judgment could be given. The party aggrieved might then appeal directly, within twenty-one days of the Mayor's Court decree, whatever the amount.

5. Was the Mayor's Court after 1753 a Crown court or a Company court? In form a Crown court: the charter was granted under the Great Seal and the appeal to the King in Council remained. In practice the Company controlled it, because the Governor and Council appointed and could remove its Aldermen.

The dual government, and why it failed

What Clive constructed on that grant is called the dual government, and it is best understood as a deliberate division of the two halves of provincial government between two different people.

• The Diwani, the revenue and civil justice, went to the Company.
• The Nizamat, criminal justice and order, remained nominally with the Nawab, exercised through a deputy whom the Company in fact appointed.

The attraction for the Company was obvious. It got the revenue without having to answer for the government, and without alarming Parliament, the Emperor or its European rivals by openly assuming sovereignty.

The defect is equally obvious once stated. Power was separated from responsibility. The Company had the money and no duty to govern; the Nawab had the duty and no money and no power. Nobody was answerable for the ordinary administration of the country, and each could blame the other.

For the first few years the Company collected through Indian officers and did not interfere directly, which meant in practice that the collection was made by whoever could extract most. The famine of 1770, in which a large part of the population of Bengal died, was made worse by the revenue being collected as though nothing had happened.

What "civil justice" looked like in that period

There was no vacuum. Bengal had courts before the English arrived and they went on sitting: the kazi administering Muslim law, the pandit advising on Hindu law, the zamindar's own court in his zamindari, the village panchayat, and the Nawab's officers above them.

What there was not was any effective supervision or appeal, any protection for a litigant against the officer who was also collecting his revenue, or any way for an English inhabitant of the interior to be sued at all. And there was one particular gap the Company could not ignore: no judicial coercion over Europeans outside the Presidency Towns. A servant of the Company in the districts was, in practice, beyond the reach of any court in Bengal.

A worked example

Take a cultivator in Burdwan in 1770 who says the amil has taken more than the revenue due.

He can complain to the zamindar, who is the person on whose behalf the collection was made. He can complain to the amil's superior, who is a servant of the Company and whose own performance is measured by the amount collected. He can go to the kazi, who has no power over a revenue officer. He can go to the Nawab's officers, who have no money and no authority over the Company's servants.

None of those is a court in the sense of a tribunal separate from the person complained of. That is the state of affairs Warren Hastings inherited in 1772, and it is the reason his first act was to build courts rather than to reform the ones that existed.

Distinctions worth having straight

What beginners get wrong

"The Company became the ruler of Bengal in 1765." It became the Diwan of Bengal, Bihar and Orissa, which is a Mughal office. It carefully did not claim sovereignty, and the pretence lasted until 1772 in form and much longer in theory.

"The dual government means two governments." It means one government split into its two halves, revenue and criminal, held by two different persons. The problem is not duplication; it is that neither half was accountable.

"There were no courts in Bengal before the British." There were, and the Company's own plans of 1772 kept much of what it found: Muslim criminal law, the kazi and the mufti, Hindu and Muslim personal law, and the local jurisdiction of zamindars. What was new was the structure above them.

Limits and criticism

It is worth being careful here, because the paper invites a lazy answer in either direction.

The dual government was indefensible and the Company's own servants said so at the time. But the picture of total anarchy owes a good deal to the men who ended it and had an interest in describing what they replaced as chaos. What can be said with confidence is narrower and more useful: revenue was being collected by people with no obligation to administer justice, and justice was being administered, where it was administered at all, by people with no power over the revenue collectors. A system in which the same officer is both the tax gatherer and the judge is bad; a system in which nobody at all is the judge is worse. India would spend the next sixty years oscillating between those two, which is exactly what Cornwallis's three plans are about.

Quick revision

• 1765: Shah Alam II grants the Company the Diwani of Bengal, Bihar and Orissa: revenue plus civil justice.
• The Nizamat, criminal justice and order, stayed nominally with the Nawab: this is the dual government.
• Its defect: power without responsibility, and responsibility without power.
• No effective appeal, no protection against the collector, and no judicial coercion over Europeans in the interior.
• The famine of 1770 exposed the whole arrangement.
• The existing courts, the kazi, the pandit, the zamindar's court and the panchayat, continued and were partly absorbed into the plan of 1772.

Test yourself

1. What exactly did the Company acquire in 1765, and what did it not acquire? It acquired the Diwani of Bengal, Bihar and Orissa: the right to collect the revenue and to administer civil justice. It did not acquire the Nizamat, which is criminal justice and the maintenance of order, and which remained nominally with the Nawab.

2. State the central defect of the dual government in one sentence. It separated power from responsibility: the Company had the revenue and no duty to govern, while the Nawab had the duty and neither money nor power.

3. Why does the difference between Diwani and Nizamat matter for the rest of this paper? Because the court structure built in 1772 is built on it: the Diwani produced the Mofussil Diwani Adalat and the Sadar Diwani Adalat on the civil side, and the Nizamat produced the Mofussil Faujdari Adalat and the Sadar Nizamat Adalat on the criminal side.

4. Who is a zamindar, and why did his exact status become a legal question? A holder of land with a hereditary right to collect its revenue and to pay a fixed sum to the government. His status mattered because the Supreme Court's jurisdiction after 1774 extended to persons employed by the Company, and whether a zamindar was such a person was the question at the heart of the Cossijurah dispute.

The chief courts at Calcutta. Above them sat the Sadar Diwani Adalat, the chief civil court, consisting of the President and two members of Council, hearing appeals from the district civil courts in suits above a fixed value; and the Sadar Nizamat Adalat, the chief criminal court, nominally under an Indian judge, the daroga-i-adalat, with the kazi and muftis, but in fact supervised by the Governor and Council.

Notice what that means. The executive government of Bengal was the highest court of Bengal, on both sides. The Governor and his Council collected the revenue, governed the provinces, and sat as the final civil and criminal court. It is the arrangement of the Presidency Towns after 1726 repeated across three provinces, and Parliament would find it as unacceptable here as there.

The rule about personal law

The most durable single provision of the plan is the rule that in suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran were to be applied to Muslims and those of the Shastra to Hindus.

Three things follow from it and are worth stating separately.

1. It is the origin of the personal laws as a category of Indian law. The idea that some subjects are governed by the law of the party's religion, and the list of what those subjects are, begins here as an administrative instruction.
2. It answered, for the mofussil, exactly the complaint the Presidency Towns had made about the Charter of 1726: that English law was being applied to people who had never heard of it.
3. It made the pandit and the kazi necessary. An English Collector could not find the law of the Shastra for himself, so the court had to contain somebody who could, and the law officers sat with the judge for that purpose. That arrangement lasted until the courts had enough translated texts and reported decisions to do without them.

A worked example

Ramkanta, a Hindu of the Burdwan district, dies in 1773. His widow and his nephew both claim the estate.

1. The suit goes to the Mofussil Diwani Adalat of Burdwan, because it is a civil suit and it arises in that district.
2. The Collector presides. The suit concerns inheritance, so the applicable law is the law of the Shastra, and the pandit attached to the court expounds it. The Collector decides according to that exposition.
3. If the value exceeds the appealable limit, the losing party appeals to the Sadar Diwani Adalat at Calcutta, where the President and two members of Council sit.
4. If the same Ramkanta had been murdered, the trial would have been in the Mofussil Faujdari Adalat, under Muslim criminal law, and a sentence of death would have gone to the Sadar Nizamat Adalat for confirmation.

Now notice the difficulty that is already visible. The Collector who decides the inheritance suit is also the officer collecting the revenue from the same estate, and the Company has an interest in who holds it. Nobody in 1772 pretended otherwise, and Cornwallis would spend the 1790s trying to separate the two functions.

Distinctions worth having straight

What beginners get wrong

"The plan of 1772 was made by Parliament." It was made by the President and Council of Bengal, under the Company's own legislative power. Parliament's first intervention is the Regulating Act of the following year, and it changed much of what Hastings had built.

"The Sadar Diwani Adalat was a court of judges." It was the Governor and two members of his Council. The first time a professional judge sat in it as such is much later.

"Hastings introduced English law into the districts." He did the reverse in the matters the plan lists: Muslim law for Muslims and Hindu law for Hindus in inheritance, marriage, caste and religious usage. Outside those matters the courts decided by usage, custom and what they thought equitable, which is the origin of the phrase "justice, equity and good conscience" in later Indian statutes.

"The plan lasted." It did not survive three years intact. The Regulating Act arrived in 1773, the new Councillors arrived in 1774 and outvoted Hastings, and the plan was substantially altered in 1774 and again in 1780. That is the next chapter.

Limits and criticism

The plan has one structural defect and one practical one, and the paper usually asks about both.

Structurally, it put the Collector at the head of the civil court of his own district and the Governor in Council at the head of both chief courts. Revenue and justice were in the same hands at every level, from the district to Calcutta. A litigant who complained of the Company's revenue administration was complaining to the Company's revenue administration.

Practically, it was built by a government whose own composition Parliament was about to change. Hastings's plan assumed a Governor with authority over his Council; the Regulating Act gave him a Council that could and did outvote him. A plan of administration is only as durable as the administration that made it.

What survives is larger than what failed: the four-court structure, the vocabulary, and above all the personal-law rule, which is with us still.

Quick revision

• Made in 1772 by the President and Council of Bengal, not by Parliament, after the Directors resolved that the Company should "stand forth as Diwan".
• District: Mofussil Diwani Adalat (civil, under the Collector, with kazi, mufti and pandit) and Mofussil Faujdari Adalat (criminal, Muslim criminal law).
• Calcutta: Sadar Diwani Adalat (President and two members of Council) and Sadar Nizamat Adalat (criminal, in fact under the Governor and Council).
• Death and forfeiture sentences required confirmation by the Sadar Nizamat Adalat.
• The personal-law rule: in inheritance, marriage, caste and other religious usages and institutions, the Koran for Muslims and the Shastra for Hindus.
• Defect: revenue and justice in the same hands at every level.

Test yourself

1. Name the four courts of the 1772 plan and say what each did. Mofussil Diwani Adalat, the district civil court under the Collector; Mofussil Faujdari Adalat, the district criminal court under Indian law officers; Sadar Diwani Adalat, the chief civil court at Calcutta consisting of the President and two members of Council; and Sadar Nizamat Adalat, the chief criminal court, nominally under an Indian judge but supervised by the Governor and Council.

2. State the personal-law rule of 1772 and say why it matters. That in suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran were to be applied to Muslims and those of the Shastra to Hindus. It matters because it is the origin of the personal laws as a category of Indian law and because it answered, for the districts, the complaint that English law was being applied to people governed by their own.

3. Why did the plan need pandits and kazis on the bench? Because the presiding officer was an English Collector who could not ascertain Hindu or Muslim law for himself, and the plan required that law to be applied in the listed matters. The law officers expounded it and the judge decided on their exposition.

4. Give the one criticism of the 1772 plan that the later history proves. That it united revenue collection and civil justice in the same officer, and executive government and the highest courts in the same body. Cornwallis separated them in 1793 precisely because of it, and the Regulating Act of 1773 was passed because Parliament would not accept a Governor in Council as a criminal court.

That is the arrangement that produced the Patna Case and Sarup Chand's case, both of which are proceedings against a Provincial Council for what it did while acting as a court. When you reach those chapters, remember that the Council in each was doing exactly what the 1775 arrangement told it to do.

The reform of 1780: separating civil justice from revenue

By 1780 two pressures had made a change unavoidable. The Supreme Court, established at Calcutta in 1774, was suing the Provincial Councils and their officers for what they did in their judicial character, and the collection of revenue was suffering. And the Councils themselves, being revenue bodies with judicial work added, were doing the judicial work badly.

In 1780 the Governor-General and Council, "considering that important changes had taken place in the constitution and civil government of those provinces since 1772", passed Regulations for the more effectual and regular administration of justice in the provincial civil courts. The central change was the separation of civil jurisdiction from revenue jurisdiction: the Provincial Councils kept the revenue, and civil justice was given to a separate set of courts, with the Sadar Diwani Adalat above them.

Later in the same year all existing regulations respecting the Sadar and Provincial Courts were consolidated and amended, and early in 1781 a revised Code was issued.

Two features of these Regulations are worth noticing for later chapters. They were expressed to be binding only until a new arrangement should be made by authority of Parliament, which is an admission that the Company knew the question was above its head. And they were not registered in the Supreme Court, and probably were never registered, which under the Regulating Act meant that the Supreme Court was not bound to recognise them at all. Both facts point straight at the Settlement Act of 1781.

Why MU calls it "recognition in 1780"

The syllabus label is "Reforms under the plan of 1774 and Recognition in 1780", and students often ask what is being recognised.

Two things, and an answer can safely give both.

The Company recognised that justice is not a branch of revenue collection. From 1772 to 1780 the man who collected was the man who judged. The Regulations of 1780 accepted that the two functions had to be in different hands, and gave the civil courts a separate existence with the Sadar Diwani Adalat at their head.

And the Sadar Diwani Adalat was recognised as a real court, given a settled constitution and a body of rules, instead of being merely the Governor and two Councillors hearing appeals when they had time. It is from this point that it can be described as an institution, and by the Settlement Act of the following year Parliament itself would recognise it, which is the strongest sense of the word.

A worked example

Follow one dispute through all three arrangements.

Bhagwan, a tenant in the Dinajpur district, says the revenue officer has distrained his crop wrongly.

Under the plan of 1772. He sues in the Mofussil Diwani Adalat. The judge is the Collector, who is the superior of the officer complained of. Appeal to the Sadar Diwani Adalat, which is the Governor and two Councillors.

Under the changes of 1775. He sues before the amil, who is himself a revenue officer. Appeal to the Provincial Council of Dinajpur, which supervises the revenue of the division. Appeal from there, with restrictions, to the Governor-General and Council as the Sadar Adalat.

After 1780. He sues in a civil court which is not part of the revenue establishment, and appeals to the Sadar Diwani Adalat. The Provincial Council keeps the revenue and loses the judicial work.

The complaint is the same in all three. Only in the third is he complaining to somebody other than the department complained of.

Distinctions worth having straight

What beginners get wrong

"The plan of 1774 was a new judicial plan by Hastings." It was not Hastings's plan and there is no single document called the plan of 1774. What MU's label refers to is the series of changes made by the new Council after the Regulating Act took effect, of which the principal ones are the arrangements of 1775 described above.

"1780 abolished the Provincial Councils." It did not. They kept the revenue. What they lost was the judicial work.

"The Regulations of 1780 bound the Supreme Court." They did not. They were not registered in the Supreme Court, and under the Regulating Act a regulation that was not registered there was not something the Court had to recognise. That is one of the reasons the quarrel could not be settled in India.

Limits and criticism

The period from 1774 to 1780 is the least tidy in this paper and it is worth saying why rather than apologising for it.

Bengal had, at the same time, a Company government whose members were at war with each other, a brand new Crown court that did not accept the Company's courts as courts, and a plan of administration being rewritten every second year. Nobody was in a position to make a settlement, because no authority in India was superior to both the Council and the Court.

The Regulations of 1780 themselves say so, in the clause that limits their operation until Parliament should make a new arrangement. The Company had reached the end of what it could do by itself, and everything after this chapter, the Settlement Act of 1781 and the Cornwallis plans, is done under an authority the Company did not have.

Quick revision

• The plan of 1772 was altered because the Regulating Act gave Hastings a Council that outvoted him; the new members arrived in October 1774.
• 1775: revenue superintendence to six Provincial Councils (Calcutta, Burdwan, Dacca, Murshidabad, Dinajpur, Patna); Collectors recalled; civil justice in the districts to Indian amils; appeal to the Provincial Council, then to the Governor-General and Council as the Sadar Adalat.
• 1780: civil jurisdiction separated from revenue jurisdiction; the Sadar Diwani Adalat given a settled place. Regulations consolidated later that year; a revised Code in 1781.
• The 1780 Regulations were expressed to last only until Parliament made a new arrangement, and were not registered in the Supreme Court.

Test yourself

1. Why was the plan of 1772 altered so soon after it was made? Because the Regulating Act gave the Governor-General a Council of four, and under section 8 the majority decided. The three Councillors who arrived in October 1774 voted together and outvoted Hastings, and the changes of 1775 are theirs.

2. What did the changes of 1775 do to the district civil courts? They recalled the European Collectors, transferred civil justice to Indian amils, and made the six Provincial Councils the appellate courts, with a further appeal to the Governor-General and Council as the Sadar Adalat. Revenue and justice were more closely united than before, not less.

3. What is meant by the "recognition in 1780"? The separation of civil jurisdiction from revenue jurisdiction, and the recognition of the Sadar Diwani Adalat as a settled court with rules of its own rather than an occasional sitting of the Governor and two Councillors.

4. Why did the 1780 Regulations not settle the quarrel with the Supreme Court? Because they were made by the Company, were expressed to last only until Parliament acted, and were not registered in the Supreme Court, so the Court was not bound to recognise them. Only an Act of Parliament could settle it, and that is the Settlement Act of 1781.

A government that could not govern itself. In Bengal the Governor could be, and was, overruled by his Council; Madras and Bombay acted independently of Bengal and sometimes against it, making war and treaties on their own account. Nobody in India was in charge of India, and nobody in England was in charge of the men in India.

What Parliament decided to do about it

The Act works on three levels at once, and an answer that separates them is much easier to follow than one that does not.

In England, it altered the Company's own constitution: the qualification for voting in the Court of Proprietors, that is, the general body of shareholders, was raised, and Directors were to be elected for four years with a quarter retiring annually instead of the whole body being elected each year. The object was to make the Directors less dependent on shifting majorities of shareholders.

In India, it created a Governor-General of Fort William in Bengal with a Council of four, gave that government a power of superintendence over Madras and Bombay, and gave it a power to make rules, ordinances and regulations.

Above both, it created a Supreme Court of Judicature at Fort William, of a Chief Justice and three other judges appointed by the Crown, and required the Company to transmit its correspondence about revenue and civil and military affairs to the Government in England.

Why a court, and why a Crown court

This is the question the paper most often asks in some form, and the answer has two halves.

The first half is that a government of servants could not be controlled by a court of servants. Every court in the Presidency Towns was staffed by the Company's own people; every court in the mofussil was the Collector, the amil or the Provincial Council. If the object was to make the Company's servants answerable, an answerable court had to come from outside the Company.

The second half is that Parliament was thinking about Englishmen in India, not about Indians. The abuses complained of in England were abuses committed by the Company's servants, and the remedy chosen was a court that could try them. That is why the Act's own jurisdiction clause, section 14, speaks of British subjects and of persons in the Company's service.

The consequence of that focus is the whole of the next six chapters. A court designed to control Englishmen was placed in a country of twenty million Indians, with no clear rule about which of them it could judge or by what law, and the collision was immediate.

A worked example

Put yourself in the House of Commons in 1773 with the Committees' reports in front of you. Three complaints have been proved to your satisfaction.

1. A Governor has taken presents from an Indian ruler, and no court in India will try him for it.
2. A Council in Bengal has made war on its own account, and the Company in London learned of it months later.
3. The Company cannot pay its debts, and asks the Treasury for a loan.

The Act answers each. Section 23 forbids presents and private trade to the Governor-General, the Councillors and the judges. Sections 9 and 10 put Madras and Bombay under the superintendence of a Governor-General named in the Act, and sections 36 and 37 require the rules made in Bengal to be sent home. Sections 39 and 40 make an offence committed in India by a Governor-General, a Councillor or a judge triable in the Court of King's Bench in England. And section 13 creates a court in Calcutta that is not the Company's.

What beginners get wrong

"The Regulating Act was passed to reform the administration of justice in India." It was passed to regulate the East India Company. Its long title says so. The Supreme Court is one provision among many, and the Act's preamble does not mention justice at all.

"The Act made the Crown the ruler of India." It did not. The Company kept its territories and its revenues. What Parliament took was a measure of supervision, and even that was indirect. Crown government arrives in 1858.

"The Act created the Supreme Court." Strictly, it did not. Section 13 empowered His Majesty to erect and establish a Supreme Court by charter. The court itself was created by the Charter of 26 March 1774, and the distinction between the Act and the Charter is one that examiners like.

Limits and criticism

The most damaging criticism of the Act is not that it did too little but that it was drafted without anybody asking what it would do when it arrived.

It gave a Governor-General a Council that could outvote him, and then named the Councillors in the Act itself so that he could not be rid of them for five years. It created a court with English process and English judges and did not say what law that court was to apply to Indians. It gave the Council a power to make regulations and made those regulations void until registered in the very court whose jurisdiction was in dispute.

The judges of the Supreme Court themselves said later that the legislature had passed the Act without sufficiently investigating what it was doing, and that if the Act did not say more than was intended, it at least said more than was well understood. That is a fair summary, and the next six chapters are the proof of it.

Quick revision

• Long title: "An Act for establishing certain Regulations for the better Management of the Affairs of the East India Company, as well in India as in Europe."
• Causes: the Company's financial crisis and application for a loan; scandal over presents and private trade; the reports of the Select and Secret Committees; and a government in India that no one controlled.
• In England: the qualification to vote in the Court of Proprietors raised; Directors elected for four years, a quarter retiring annually.
• In India: a Governor-General and Council of four at Fort William, with superintendence over Madras and Bombay, and a power to make rules.
• A Supreme Court of Judicature to be erected by royal charter.
• The preamble mentions neither justice nor the people of Bengal.

Test yourself

1. Give the two reasons the Act's own preamble states. That the powers granted by charter had proved insufficient to prevent abuses in the government and administration of the Company's affairs at home and in India, to the injury of public credit and of the Company's commercial interests; and that the annual election of Directors weakened their authority and produced instability.

2. Why did Parliament think a Crown court was necessary, when courts already existed in Calcutta? Because every existing court was staffed by the Company's own servants, and the object was to make those servants answerable. A court of the Company could not control the Company.

3. Distinguish the Act from the Charter of 1774. Section 13 of the Act empowered the Crown to erect a Supreme Court by charter; it did not itself create one. The court was created by the Charter of 26 March 1774 granted under that power.

4. What was the Act's chief drafting weakness? It said who the Court could judge without saying what law it should apply, gave the Governor-General a Council that could outvote him and then named the Councillors in the statute, and made the Council's regulations depend on registration in the court with which the Council was in dispute.

A casting voice is a second vote given to the presiding member to break a tie. It is the only special power the Act gives the Governor-General, and it is worth understanding exactly what it is worth. With five members present and three against him, a casting voice is worth nothing. It becomes decisive only when the Council is reduced to an even number and split.

That is not a technicality. Hastings was in a minority of one against Clavering, Monson and Francis from October 1774. Monson died in September 1776, leaving Hastings, Barwell, Clavering and Francis, an even number, and the casting voice made Hastings master of the Council for the first time. Clavering died in August 1777. Every event MU asks about in topic 1.2, from the trial of Nandkumar to the Cossijurah crisis, sits somewhere on that arithmetic.

Section 9: superintendence over Madras and Bombay

Section 9 gives the Governor-General and Council, or the major part of them, power of superintending and controlling the government and management of the Presidencies of Madras, Bombay and Bencoolen, so far that it shall not be lawful for any President and Council of those places to make any orders for commencing hostilities, or declaring or making war, against any Indian princes or powers, or for negotiating or concluding any treaty of peace or other treaty with them, without the consent and approbation of the Governor-General and Council first had and obtained, except in cases of such imminent necessity as would render it dangerous to postpone the hostilities.

This is the beginning of a central government for British India, and it is worth noticing how narrow it is. The control is over war and treaties, not over revenue, justice or ordinary administration. Madras and Bombay remained separate governments in everything else, and would remain so, with the central power growing by stages, until the Charter Act of 1833 made the Governor-General of Bengal the Governor-General of India.

Section 9 also required the subordinate Presidencies to correspond constantly and diligently with Bengal, transmitting an exact particular of all advices, intelligence and transactions coming to their knowledge relating to the government, commerce, revenues or interest of the Company.

Section 10: the four men, and the five years

Section 10 names them. Warren Hastings is to be the first Governor-General; Lieutenant-General John Clavering, the Honourable George Monson, Richard Barwell and Philip Francis are to be the four first Councillors. Each is to hold office for five years from his arrival at Fort William and taking upon himself the government, and is not removable in the meantime except by His Majesty, upon a representation made by the Court of Directors. After the five years, the power of nominating and removing the Governor-General and Council is vested in the Directors.

Naming the men in the statute was meant as a guarantee of independence, and in one sense it was: the Company could not simply recall a Councillor who displeased it. What Parliament did not foresee is that it also made the government of Bengal unalterable for five years even when it had ceased to function.

A worked example

It is November 1774. The Council of Fort William must decide whether to accept the accusation Maharaja Nandkumar has made against the Governor-General, that he has taken presents.

• Who decides? Under section 7 the government is vested in the Governor-General and Council; under section 8 the majority of those present decides.
• Count the votes. Hastings and Barwell on one side; Clavering, Monson and Francis on the other. Three to two.
• Does the casting voice help Hastings? No. It operates only on an equal division, and the division is three to two.
• Can Hastings dissolve the Council or remove a member? No. Section 10 fixes them for five years, removable only by His Majesty on a representation of the Directors.
• Result. The Council receives the accusation against its own President, over his objection, and proceeds to examine it. That is exactly what happened, and it is the beginning of the sequence that ends on the gallows in August 1775.

Now change one fact. Suppose Monson had died a year earlier. The Council is then Hastings, Barwell, Clavering, Francis: two against two, the casting voice operates, and the accusation is not received. The whole of Module I's most famous chapter turns on the arithmetic of section 8.

Distinctions worth having straight

What beginners get wrong

"The Regulating Act made the Governor-General the ruler of India." It made him the head of a five-member board for the Presidency of Fort William, with a limited superintendence over Madras and Bombay in war and treaties. The office of Governor-General of India dates from the Charter Act of 1833.

"The casting vote gave Hastings control of his Council." It gave him a second vote only when the Council was equally divided. For his first two years he was in a minority of three to two and the casting voice was worthless to him.

"Parliament appointed the Council to check the Governor-General." Parliament appointed them because it distrusted the Company's own patronage; the effect of naming them in the Act was to make the Council immovable, which is a different thing and turned out to be worse.

Limits and criticism

The government created by sections 7 to 10 had an internal contradiction that no amount of good faith could have cured. It made one man responsible in the eyes of Parliament for the government of three provinces and gave him one vote in five. It then fixed the five men in place for five years, so that a majority which would not work with its President could not be changed.

The Act of 1781 did not repair this. It was repaired only in 1786, when Parliament gave the Governor-General power to override his Council in matters affecting the safety, peace or interest of the empire, and that power is the ancestor of the Governor-General's special responsibilities in every later constitutional statute down to 1935.

Quick revision

• s.7: a Governor-General and four Councillors for Fort William; the whole civil and military government of the Presidency, and the territorial acquisitions and revenues of Bengal, Bihar and Orissa, vested in them.
• s.8: decision by the majority of those present; a casting voice to the Governor-General only on an equal division.
• s.9: superintendence and control over Madras, Bombay and Bencoolen in war and treaties only, plus a duty to correspond.
• s.10: Warren Hastings Governor-General; Clavering, Monson, Barwell, Francis the first Councillors; five years, removable only by His Majesty on the Directors' representation.
• Sections 11 and 12 are omitted from our reprint and nothing is claimed about them.

Test yourself

1. In whom did section 7 vest the government of Bengal, and of what exactly? In the Governor-General and Council of Fort William, of the whole civil and military government of the Presidency and of the ordering, management and government of the territorial acquisitions and revenues in Bengal, Bihar and Orissa while they remained in the Company's possession.

2. Explain the casting voice, and say why it did not help Warren Hastings until 1776. It is a second vote for the presiding member when the Council is equally divided. It did not help Hastings while Clavering, Monson and Francis outvoted him three to two, because there was no equal division. It became decisive after Monson's death in September 1776 left an even number.

3. What control did section 9 give Bengal over Madras and Bombay? Only over war and treaties: those Presidencies could not commence hostilities, declare or make war, or negotiate or conclude a treaty with any Indian prince or power without Bengal's consent, except in cases of imminent necessity. They also had to correspond and transmit intelligence.

4. What was the effect of naming the first Councillors in the Act itself? It secured them for five years against removal by the Company, which was intended to make them independent, and it also made the government of Bengal unchangeable for five years when its members would not work together.

Four of those words need unpacking, and a student should be able to give each in a line. Civil jurisdiction is over suits between subject and subject. Criminal jurisdiction is over offences. Admiralty jurisdiction is over maritime matters, including prize. Ecclesiastical jurisdiction is over matters that in England belonged to the Church courts, chiefly wills and the administration of the estates of the dead. To those the Court's own charter would add equity, so that the Court is commonly described as having five jurisdictions. Court of record, oyer and terminer and gaol delivery are explained at [The Charter of 1726: Mayors' Courts at Madras, Bombay and Calcutta].

Notice what is not in section 13. It does not say what law the Court is to apply. That silence, the same silence as in the Charter of 1726, is the origin of the trial of Nandkumar and of most of what follows.

Section 14: over whom

Section 14 is the jurisdiction clause, and it is the section that produced the quarrel. It provides that the new charter, and the jurisdiction, powers and authorities to be established by it, shall extend to all British subjects who shall reside in the kingdoms or provinces of Bengal, Bihar and Orissa, or any of them, under the protection of the said United Company, and that the Supreme Court shall have full power and authority:

1. 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
2. to entertain, hear and determine any suits or actions whatsoever against any of His Majesty's subjects in Bengal, Bihar and Orissa; and
3. any suit, action or complaint against any person who shall, at the time when the debt or cause of action or complaint arose, have been employed by, or have been directly or indirectly in the service of, the Company.

The third limb is the trap. "Directly or indirectly in the service of the said United Company" is a phrase without edges. Was a revenue farmer in the Company's service? A zamindar who collected revenue and paid it to the Company? A banker who held the Company's money? A servant of a servant? Every one of the seven proceedings MU names in topic 1.2 turns, somewhere, on that phrase.

And notice a second difficulty. Limb 1 speaks of complaints against His Majesty's subjects for crimes, misdemeanours or oppressions. Were the inhabitants of Calcutta His Majesty's subjects? The Act does not say, the Charter does not say, and the judges of the Supreme Court later complained that the questions of who was a subject, and whether the territorial acquisitions amounted to an acquisition of sovereignty, were left doubtful to be decided by the Court whenever they should arise.

Section 15: the immunity of the Government

Section 15 provides that the Court shall not be competent to hear, try or determine any indictment or information against the Governor-General or any of the Council for the time being, for any offence, not being treason or felony, which he shall be charged with having committed in Bengal, Bihar and Orissa.

An indictment is a formal written accusation of crime presented to a court; an information is a similar accusation preferred without a grand jury. So the section is about criminal proceedings only, and it leaves two things untouched.

It does not protect the Governor-General or a Councillor from a charge of treason or felony. And it does not protect them from civil suits at all. That gap is exactly what the plaintiff in the Cossijurah dispute used when he sued Warren Hastings and the members of Council personally, and it is why the Settlement Act of 1781 had to go further than section 15.

A worked example

A merchant in Murshidabad in 1777 wants to sue for a debt. Can he do it in the Supreme Court at Calcutta?

Case one. The defendant is an English free merchant living at Murshidabad. Yes: he is a British subject residing in Bengal under the Company's protection, and section 14 covers him.

Case two. The defendant is an Indian banker who has never had anything to do with the Company. Section 14 gives no jurisdiction unless he is one of His Majesty's subjects, which was doubtful outside Calcutta, or was employed by the Company. The right answer is that the Court had no jurisdiction, and in practice a plea to the jurisdiction succeeded.

Case three. The defendant is an Indian who farms the revenue of a district for the Company. Now limb 3 of section 14 is arguable: was he "directly or indirectly in the service of" the Company at the time the debt arose? The plaintiff files an affidavit saying he was; the defendant says he was a contractor and not a servant. That single question is the Cossijurah dispute.

Case four. The plaintiff wants to prosecute a member of the Council for oppression, not amounting to felony, committed at Patna. Section 15 shuts the door: the Court is not competent to try such an indictment or information.

Distinctions worth having straight

What beginners get wrong

"The Regulating Act established the Supreme Court." Section 13 empowered the Crown to establish it by charter. The Court was established by the Charter of 26 March 1774.

"The Supreme Court had jurisdiction over all Indians." It did not, and it never claimed to. Its jurisdiction over Indians depended on their being in the Company's service, or on their submitting to it, and where a zamindar pleaded to the jurisdiction the plea was ordinarily sustained.

"Section 15 protected the Governor-General from everything." It protected him from criminal indictments and informations for offences other than treason or felony. It did not protect him from a civil action, which is what he was in fact sued by in 1780.

"The judges were Company servants." They were barristers of at least five years' standing, appointed by the Crown, and paid, but not appointable or removable, by the Company. That independence is the whole point of the Court and the whole cause of the quarrel.

Limits and criticism

The criticism the judges themselves made is the one to remember, because it is both fair and precise: the Act made subjection to the English Crown the test of liability to the jurisdiction of the Court, and then said nothing about who was a subject.

There was no declaration, in the statute or in the charter, about which of the inhabitants of Bengal were subjects, nor whether the Company's territorial acquisitions amounted to an acquisition of sovereignty or only to powers exercised within the territories of the Mughal, nor whether Calcutta itself was so far within the King's allegiance that persons born there were natural-born subjects. Questions of the first importance were left doubtful, to be decided by the Court whenever they arose, and the Court had to decide them while being accused of usurpation for doing so.

Add to that the silence about the applicable law and the elastic words of the third limb of section 14, and the Act had built a court that could not avoid a collision with the government beside which it sat.

Quick revision

• s.13: His Majesty may erect a Supreme Court of Judicature at Fort William by charter under the Great Seal; a Chief Justice and three judges, barristers of England or Ireland of five years' standing; civil, criminal, admiralty and ecclesiastical jurisdiction; power to make rules of practice; a court of record; a court of oyer and terminer and gaol delivery for Calcutta and its subordinate factories.
• s.14: jurisdiction over all British subjects resident in Bengal, Bihar and Orissa under the Company's protection; over His Majesty's subjects for crimes, misdemeanours or oppressions and in suits; and over any person employed by, or directly or indirectly in the service of, the Company.
• s.15: no indictment or information against the Governor-General or a Councillor for an offence not being treason or felony committed in those provinces.
• The Act is silent on the law to be applied and on who is a subject.

Test yourself

1. What did section 13 actually enact? That it should be lawful for His Majesty by charter under the Great Seal to erect and establish a Supreme Court of Judicature at Fort William, of a Chief Justice and three judges who must be barristers of at least five years' standing, with all civil, criminal, admiralty and ecclesiastical jurisdiction, power to make rules of practice, the status of a court of record, and the commissions of oyer and terminer and gaol delivery for Calcutta.

2. Set out the three classes of person section 14 brought within the Court's jurisdiction. British subjects residing in Bengal, Bihar and Orissa under the Company's protection; His Majesty's subjects, against whom complaints for crimes, misdemeanours or oppressions and suits and actions might be entertained; and any person who at the time the cause of action arose was employed by, or was directly or indirectly in the service of, the Company.

3. What did section 15 protect, and what did it leave exposed? It protected the Governor-General and Councillors from indictments and informations for offences other than treason or felony committed in the three provinces. It left them exposed to charges of treason or felony, and to civil actions, and the civil action is what was used against them in the Cossijurah dispute.

4. Name the two silences in the Act that caused the quarrel with the Council. It did not say what law the Court was to apply, and it did not say who was a British subject or whether the Company's acquisitions amounted to sovereignty. Both were left to be decided by the Court in the course of litigation.

5. Was a zamindar within the Court's jurisdiction? Not as a zamindar. He came within it only if he was in fact employed by or in the service of the Company, or if he submitted to the jurisdiction. Where a zamindar pleaded to the jurisdiction the plea was ordinarily sustained.

Section 37: transmission and disallowance

Section 37 required the Governor-General and Council, from time to time, to transmit copies of all such rules, ordinances and regulations to one of His Majesty's principal Secretaries of State. His Majesty might, from time to time as he thought necessary, signify to the Company under his sign manual his disapprobation and disallowance of any of them; and from the time such disallowance was duly registered and published in the Supreme Court at Fort William, the rules disallowed became null and void. If the Crown did not disallow within two years of the making of the rules, they stood.

A Secretary of State is a minister of the Crown; the sign manual is the sovereign's own signature, the formal instrument by which such an act is authenticated; disallowance is the annulment of a law by a superior authority, as distinct from a veto, which prevents it coming into force at all.

Learn this pair, section 36 and section 37, together, because they are the earliest form of a mechanism that runs through the whole of Module IV. Indian legislation is subordinate: it is made under a power, limited by repugnancy, and subject to disallowance from England. The Charter Act of 1833, the Indian Councils Act 1861 and the Government of India Acts all repeat the pattern with different names, and it does not finally disappear until 1947.

Section 23: presents and private trade

Section 23 provides that no Governor-General, no member of the Council, and no Chief Justice or judge of the Supreme Court shall, directly or indirectly, by themselves or by any other person for their use or on their behalf, accept, receive or take, from any person, in any manner or on any account whatsoever, any present, gift, donation, gratuity or reward, pecuniary or otherwise, or any promise or engagement for one; and that none of them shall carry on, be concerned in, or have any dealing or transaction by way of traffic or commerce of any kind whatsoever, for his own benefit or for anybody else's, the trade and commerce of the Company alone excepted, any usage or custom to the contrary notwithstanding.

The two prohibitions answer the two scandals that had brought the Company to Parliament's attention: the fortunes made from presents given by Indian rulers to the Company's servants, and the private trade carried on by men who were also the government and could give themselves advantages no competitor could match.

Section 23 is not an antiquarian detail. It is the section under which Maharaja Nandkumar accused Warren Hastings in March 1775 of having taken presents, and that accusation is where the most famous proceeding in this paper begins.

Section 17: the persons of the rulers and the judges

Section 17 provides that nothing in the Act shall extend to subject the person of the Governor-General, of any Councillor, or of the Chief Justice or judges, to be arrested or imprisoned upon any action, suit or proceeding in the Supreme Court.

It is a personal immunity from arrest and imprisonment, not an immunity from being sued. A Councillor could be sued, and judgment could go against him; what could not be done was to take his body. Put section 15 and section 17 side by side and the protection given to the Government becomes clear and also clearly incomplete: no criminal indictment except for treason or felony, and no arrest, but civil liability intact. That is precisely the gap the Cossijurah plaintiff used.

Sections 39 and 40: trial in England

Section 39 provides for an offence committed in India by a Governor-General, President, Governor or member of Council of any of the Company's settlements, or by the Chief Justice or any judge of the Supreme Court.

Section 40 explains why it was needed. It recites that the provisions made by former laws for hearing and determining in England offences committed in India had been found ineffectual, by reason of the difficulty of proving in this Kingdom matters done there, and enacts that in all cases of indictments or informations laid or exhibited in the Court of King's Bench for misdemeanours or offences committed in India, special provision might be made for the trial.

The Court of King's Bench was the principal common law court in England. The point of these two sections is accountability of a particular kind: the highest officers in India were to be answerable, but answerable at Westminster, not in Calcutta. Section 15 had taken them out of the Supreme Court's criminal jurisdiction, and sections 39 and 40 supply where they were to be tried instead.

An answer that puts sections 15, 39 and 40 together as a single scheme, immunity in India balanced by liability in England, is the answer that shows understanding rather than recall.

A worked example

The Council of Fort William resolves in 1777 to make a regulation fixing the fees of pleaders in the provincial courts.

1. Is there power? Yes, under section 36: it is a rule for the good order and civil government of the settlement and its subordinate places.
2. Is it within the limit? It must not be repugnant to the laws of the realm, and a scale of fees is not.
3. Is it in force? Not yet. Under section 36 it is of no force until registered and published in the Supreme Court. If the Court declines to register it, it is not law.
4. What next? Under section 37 a copy goes to a Secretary of State. If the Crown signifies disallowance under the sign manual, and the disallowance is registered and published at Fort William, the regulation becomes null and void. If nothing is done within two years, it stands.
5. And if a Councillor takes 500 rupees from a pleader to have his name included? That is a present within section 23. He cannot be indicted for it in the Supreme Court, because of section 15, unless it is treason or felony; he cannot be arrested, because of section 17; but he may be prosecuted in the Court of King's Bench in England under sections 39 and 40.

Distinctions worth having straight

What beginners get wrong

"Section 36 made the Governor-General in Council the legislature for India." It made him a rule-making authority for the settlement of Fort William and its subordinate places, limited by repugnancy and dependent on registration in a court. A legislature for the whole of British India arrives with the Charter Act of 1833.

"The Supreme Court could veto legislation." In substance, yes, and that is the point worth making, but the mechanism was registration, not veto. A regulation not registered simply never became valid.

"Section 23 was a dead letter." It was the section Nandkumar invoked against Hastings, and the accusation was received by the Council. Whatever one thinks of what followed, the section was used.

Limits and criticism

Two criticisms are worth making and both are structural rather than moral.

The registration requirement put a court in the legislative process. A court exists to decide disputes about laws, and cannot do that impartially if it has already had to approve or refuse them. The Settlement Act of 1781 removed the requirement for regulations affecting the provincial courts, which is an admission that it had been a mistake.

The accountability provisions were unenforceable in practice. Section 40 itself says that trying Indian offences in England had already failed once because of the difficulty of proving in England what had been done in India, and it is not obvious that the new provisions cured it. An officer who could not be tried in Calcutta and could not realistically be convicted in London was, for most practical purposes, not triable at all. That gap is the reason impeachment, a political rather than a judicial remedy, was the route eventually used against both Hastings and Impey.

Quick revision

• s.17: no arrest or imprisonment of the Governor-General, Councillors, Chief Justice or judges on any proceeding in the Court. Not an immunity from suit.
• s.23: no presents and no private trade for the same officers; the Company's own trade excepted. The section Nandkumar invoked against Hastings.
• s.36: power to make rules, ordinances and regulations, not repugnant to the laws of the realm, with reasonable fines; void until registered and published in the Supreme Court.
• s.37: copies to a Secretary of State; the Crown may disallow under the sign manual, effective when registered at Fort William; two years' silence validates.
• ss.39 and 40: offences in India by the highest officers triable in the Court of King's Bench, because trial in England under former laws had proved ineffectual.

Test yourself

1. Why could the Governor-General in Council not make a valid regulation by itself? Because section 36 provided that its rules, ordinances and regulations were of no force until duly registered and published in the Supreme Court. Registration by the Court was a condition of validity.

2. What happened to a regulation that London did not like? Under section 37, copies went to a Secretary of State; the Crown could signify disallowance under the sign manual, and once that disallowance was registered and published at Fort William the regulation was null and void. If the Crown did not act within two years, the regulation stood.

3. What did section 23 prohibit, and to whom did it apply? The acceptance of any present, gift, donation, gratuity or reward, and the carrying on of any private trade or commerce, by the Governor-General, any member of Council, and the Chief Justice and judges of the Supreme Court. Only the Company's own trade was excepted.

4. How do sections 15, 17, 39 and 40 fit together? Sections 15 and 17 keep the Governor-General, the Councillors and the judges out of the Supreme Court's criminal process and free from arrest; sections 39 and 40 supply the forum where they were instead to be tried, the Court of King's Bench in England. Immunity in India was balanced by liability at Westminster.

5. Why did the Settlement Act of 1781 have to change section 36? Because the regulations the Council made for the provincial courts in 1780 were not registered in the Supreme Court and so were not binding on it, and no settlement of the quarrel was possible while the Court had to approve the rules by which the rival courts were constituted. The Act of 1781 empowered the Council to frame regulations for the provincial courts without reference to the Supreme Court.

The five jurisdictions

The Court is usually described as having five jurisdictions, and an answer that lists them with a line each is doing what the question asks.

As a court of common law, it heard ordinary civil actions, in contract, in debt, in trespass and the rest, with English forms of action, English pleading and, for issues of fact, a jury.

As a court of equity, it exercised the jurisdiction of the Court of Chancery in England: trusts, mortgages, accounts, specific performance, injunctions and the administration of estates. Equity is the body of principles developed to soften the rigidity of the common law, and the Court's equity side made it the forum for the complicated estate litigation that fills the reports of the period.

As a court of criminal jurisdiction, it sat with the commissions of oyer and terminer and gaol delivery, tried indictments with a grand jury and a petty jury exactly as at the Old Bailey, and could pass sentence of death. The trial of Nandkumar was conducted in that character.

As an ecclesiastical court, it exercised the jurisdiction that in England belonged to the Church courts, principally the grant of probate and letters of administration.

As a court of admiralty, it exercised maritime jurisdiction, including prize.

To those the Charter added the powers of the Court of King's Bench, which is the provision that gave the Court its prerogative writs: habeas corpus, mandamus, certiorari and prohibition. That single addition is the reason two of the seven proceedings MU names are habeas corpus cases, and it is also the direct ancestor of the writ jurisdiction you will study in Module III, because the Calcutta, Madras and Bombay High Courts inherited it in 1861 and article 226 generalised it in 1950.

Appeals

An appeal lay from the Supreme Court to the King in Council in England. That is the same destination as the appeal from the Mayors' Courts under the Charter of 1726, and it is the route that in 1833 became the Judicial Committee of the Privy Council. Module II follows it.

A worked example

An English merchant at Calcutta dies in 1776, leaving a will, an English partner, an Indian agent who says he was never paid, and a ship at sea that has been captured by a French privateer.

The ecclesiastical side grants probate of the will. The equity side administers the estate and takes the accounts between the partners. The common law side hears the agent's action for his wages, if the agent can bring himself within section 14 of the Act. The admiralty side deals with the ship. And if the executor imprisons the agent to stop him suing, the King's Bench powers supply a writ of habeas corpus.

One court, five hats, and every one of them English. Now imagine the same court applying the same five bodies of English law to a zamindar of Midnapore who has never left his district, and the whole difficulty of Module I is in front of you.

What beginners get wrong

"The Regulating Act established the Supreme Court." Section 13 authorised the King to establish it. The Charter of 1774 established it.

"The Supreme Court replaced the Mayor's Court at Calcutta." The Mayor's Court at Calcutta was superseded, and the new Court took its work; but the Mayors' Courts at Madras and Bombay continued, because the Charter of 1774 was for Bengal alone. Supreme Courts came to Madras in 1801 and to Bombay in 1823, and Module II deals with them.

"The Court's power to issue writs came from the Regulating Act." It came from the Charter, which gave the Court the powers of the Court of King's Bench. The Act is silent about writs.

"Impey was a Company man." He was a Crown appointee whom the Company could not dismiss, and the friction that produced is the subject of the next seven chapters. What is true, and is the fair criticism, is that in 1780 he accepted from the Council the office of Judge of the Sadar Diwani Adalat, with a salary held at their pleasure, and that acceptance became an article of his impeachment.

Limits and criticism

The criticism to make is not that the Charter was badly drafted but that it could only be as good as the Act it was made under, and the Act had left the two central questions open: what law the Court was to apply, and to whom.

The Charter answered neither. It gave the Court English jurisdictions, English process and English writs, and set it down in a province where the Company's own courts were applying Hindu and Muslim law under the plan of 1772. Two systems of law and two systems of courts were now operating in the same territory, neither subordinate to the other, and no authority in India could decide between them.

Cowell's verdict, written a century later, is worth carrying into the next chapters: the attempt to introduce an English superintendence of law and justice on the part of the Crown, and an administration of English rules of law and equity by an English court modelled on English fashion, was made rashly and without sufficient preparation, and without any measures to secure the co-operation of the local authorities. He adds, in fairness, that the Court afterwards won its way, with diminished powers, to greater authority and respect among Europeans and Indians alike than any other tribunal that has ever existed in India.

Quick revision

• Granted 26 March 1774, under section 13 of the Regulating Act. The Act authorised; the Charter established.
• Sir Elijah Impey Chief Justice; Chambers, Lemaistre and Hyde puisne judges. English barristers, appointed by the Crown, paid by the Company.
• Opened at Calcutta in October 1774, the same month the new Councillors arrived.
• Five jurisdictions: common law, equity, criminal, ecclesiastical, admiralty; plus the powers of the Court of King's Bench, which carried the prerogative writs.
• Appeal to the King in Council.
• It did not extend beyond Bengal: Madras got a Supreme Court in 1801 and Bombay in 1823.

Test yourself

1. What is the correct relationship between the Regulating Act and the Charter of 1774? Section 13 of the Act made it lawful for the King to erect a Supreme Court and described what it was to have; the Charter of 26 March 1774, granted under that power, actually erected the Court, appointed its judges and settled its constitution.

2. Name the first four judges. Sir Elijah Impey as Chief Justice, with Robert Chambers, Stephen Caesar Lemaistre and John Hyde as puisne judges.

3. List the Court's jurisdictions and say what the King's Bench powers added. Common law, equity, criminal, ecclesiastical and admiralty. The powers of the Court of King's Bench added the prerogative writs, habeas corpus, mandamus, certiorari and prohibition, which is why habeas corpus appears in two of the seven famous proceedings and why the writ jurisdiction descends from this Court to the High Courts and then to article 226.

4. Why is the coincidence of dates in October 1774 worth noticing? Because the Supreme Court opened in the same month that Clavering, Monson and Francis arrived and took their seats. The Court and a Council divided against itself began work together, and neither had any settled way of dealing with the other.

5. What did the Charter fail to settle? The same two things the Act failed to settle: what law the Court was to apply, and to whom its jurisdiction extended. It supplied English jurisdictions and English process without answering either.

June 1775. The trial. The indictment contained twenty counts, framed on the English statute 2 Geo. II c. 25, which made it a capital felony to forge or publish a bond, promissory note or writing obligatory with intent to defraud. The reason for so many counts is technical and worth knowing: by the rules of criminal pleading each count had to charge one offence and no more, and an indictment for forgery had to state the person intended to be defrauded, so the same act produced counts for forging and for publishing, against a bond, a writing obligatory and a promissory note, and against each of several persons who might have been defrauded. Only the nineteenth and twentieth counts turned out to matter.

All four judges sat. A grand jury found the bill, and a petty jury of twelve Englishmen tried the case. Nandkumar's counsel challenged the first jury impanelled, and the challenge was allowed. The jury convicted.

5 August 1775. Nandkumar was hanged at Calcutta. The judges had power to respite, that is, to postpone, a capital sentence and refer the case to the Crown for mercy, and they did not use it. Clavering's own minute in the Bengal Secret Consultations records that a paper sent to him by Nandkumar on the 4th was left unread on his table until the 6th, "which was the day after his execution".

The legal objections, stated fairly

There are four, and a good answer states each and gives the answer to it.

One: the statute did not apply. Forgery was made a capital felony in England by an Act of 1728. Was that Act in force at Calcutta, and did it reach a Brahmin who was not an Englishman? The Court held that it was, and the strongest support for that view is the fact recorded in the next chapter: Radhacharan Mitra, a Hindu of rank, had been convicted and sentenced to death for forgery at Calcutta in 1765, ten years before the Supreme Court existed, and pardoned. The statute had been applied there before, and to a man of the same community and rank.

Two: the act was done before the Court existed. The alleged forgery was of 1770; the Court was created in 1774. The answer is that the Court's jurisdiction was over the offence and the offender, not over the date, and the statute creating the offence was already in force at Calcutta; but a student is entitled to think the point uncomfortable.

Three: the punishment was disproportionate and alien. Hanging for forgery was English law, and severe even in England; it was unknown to Hindu and Muslim law, and shocking to Indian opinion, particularly as applied to a Brahmin. That objection is unanswerable as a matter of policy, and it is the real force of the criticism. It is an objection to the Regulating Act's silence about the applicable law, more than to the judges.

Four: the timing. A man who accuses the Governor-General in March is prosecuted for conspiracy by the Governor-General in April, arrested for an old forgery in May, tried in June and hanged in August. Even if every step was regular, the sequence looks like what Macaulay said it was.

What can be said on the other side

The case against a conspiracy between Hastings and Impey, argued at length by Sir James Fitzjames Stephen, rests on facts rather than on character, and these are the ones to know.

The prosecutor for forgery was Mohan Prasad, not Hastings. Mohan Prasad was Nandkumar's own enemy, had made the same charge five years earlier, and had acted as attorney in the earlier civil litigation between the parties, so he knew details of the transaction that Hastings could not have known.

The deed alleged to be forged was in the custody of the Court until about 24 April, and Nandkumar was arrested on 6 May. To have got up such a prosecution in ten or twelve days, in a matter of accounts in several languages, would have required investigations of which there is no evidence and which nobody suggested to Hastings when he was cross-examined about the prosecution on oath.

The trial was before all four judges and a jury, and the verdict was the jury's.

Against all that stands the plain fact that the man hanged was the Governor-General's accuser, and that the Governor-General's own conspiracy prosecution was running at the same time. The honest answer says both.

A worked example: how to answer the question

Suppose the question is: "Discuss the trial of Raja Nandkumar. Was it a judicial murder?"

1. State the facts in order, with the four dates: March 1775 the accusation, April the conspiracy prosecution and bail, 6 May the arrest for forgery, June the trial, 5 August the execution.
2. State the legal basis: twenty counts on 2 Geo. II c. 25, tried by the Supreme Court in its criminal jurisdiction under the Charter of 1774, with a grand jury and a petty jury.
3. State the four objections, as above.
4. State the answers to them, including the 1765 conviction of Radhacharan Mitra, which is the fact most students do not know and which is worth a good deal in an answer.
5. Conclude honestly. The forms of English criminal law were observed. The application of English criminal law to an Indian for an Indian transaction, with a capital penalty unknown to his own law, was the fault of the Regulating Act rather than of the judges, and it is the reason the Settlement Act of 1781 had to provide expressly for the personal law of Hindus and Muslims.

What beginners get wrong

"Hastings prosecuted Nandkumar for forgery." He prosecuted him for conspiracy. The forgery prosecution was brought by Mohan Prasad. Merging the two is the commonest error in answers on this case.

"Nandkumar was tried for accusing Hastings." He was tried for forging a bond in a private transaction with a banker's estate. Whether the accusation caused the prosecution is exactly the question in dispute.

"The judges convicted him." The jury convicted him. The judges tried the case and passed sentence, and the criticism of them is that they did not respite the sentence, not that they returned the verdict.

"Impey was later convicted for it." He was impeached in the House of Commons and was acquitted of the charges. Impeachment is a political proceeding before Parliament, not a trial in a court, and Hastings too was impeached and acquitted.

Limits and criticism

The lasting significance of the case is not who was to blame. It is what it proved about the system.

The Supreme Court could try an Indian, on English criminal law, for an act committed before the Court existed, and hang him, and no authority in India could review it. The only appeal from a capital conviction was the judges' own power to respite, which they held and did not use. The Council could not intervene, and did not.

That is a court with no check on it in the country where it sits, applying a law the country does not know. Whatever one concludes about Impey, the arrangement itself was indefensible, and Parliament effectively conceded as much six years later.

Quick revision

• March 1775: Nandkumar accuses Hastings before the Council of taking presents, contrary to s.23 of the Regulating Act. Hastings is outvoted under s.8.
• April 1775: Hastings prosecutes Nandkumar, Fowke and Radhacharan for conspiracy; Nandkumar and Fowke held to bail.
• 6 May 1775: arrested for forgery of a bond of Bulaki Das, at the instance of Mohan Prasad, who had made the same charge about five years earlier in the Mayor's Court.
• June 1775: tried on twenty counts under 2 Geo. II c. 25 before all four judges; grand jury and petty jury; convicted.
• 5 August 1775: hanged. The judges' power to respite was not used.
• The strongest fact for the defence of the Court: Radhacharan Mitra was convicted of forgery at Calcutta in 1765 under the same statute and pardoned.

Test yourself

1. Who prosecuted Nandkumar for forgery, and who prosecuted him for conspiracy? Mohan Prasad prosecuted the forgery; Warren Hastings prosecuted the conspiracy. They are two different proceedings and merging them is the commonest mistake.

2. On what statute was the indictment framed, and how many counts did it contain? On 2 Geo. II c. 25, which made it a capital felony to forge or publish a bond, promissory note or writing obligatory with intent to defraud. There were twenty counts, because each count had to charge a single offence and to name the person intended to be defrauded.

3. State the four legal objections to the trial. That the English forgery statute did not apply at Calcutta or to a Hindu; that the act preceded the Court's creation; that a capital penalty for forgery was unknown to Hindu and Muslim law and shocking to Indian opinion; and that the sequence of accusation, prosecution, arrest and execution within five months makes the proceedings look directed.

4. What is the strongest answer to the first objection? That Radhacharan Mitra, a Hindu of rank, had been tried, convicted and sentenced to death for forgery at Calcutta in 1765 under the same statute, and pardoned. The statute had been applied at Calcutta to an Indian of the same rank ten years before the Supreme Court existed.

5. What does the case prove about the system, whatever one concludes about the judges? That a Crown court applying English criminal law could try and hang an Indian in Bengal with no appeal, no review by any authority in India, and no rule telling it what law to apply. That is a defect of the Regulating Act, and the Settlement Act of 1781 had to correct it.

So the case is cited, and should be cited by a student, as evidence on a disputed question: whether the application of English criminal law to Indians at Calcutta in 1775 was a novelty invented for Nandkumar, or the continuation of what had been done there for a decade.

What it does not prove

Be careful here, because an answer that overstates the point is as wrong as one that omits it.

Radhacharan Mitra was pardoned. Nandkumar was hanged. If a student uses the 1765 case to argue that Nandkumar's execution was ordinary and unremarkable, the reply is immediate: the earlier man's life was spared and the later man's was not, and the judges of 1775 had the same power to respite that had been exercised in 1765.

Nor does the case answer Macaulay's third proposition. That hanging a Brahmin for forgery was shocking to Indian notions is a statement about Indian opinion, and it is not refuted by showing that it had happened before. If anything the 1780 petition of the British inhabitants of Bengal supports Macaulay on that point: it records the "general consternation" and astonishment with which Indians of all ranks were seized by the example of Radhacharan Mitra, because they understood from it that they might be tried by a law they did not know for an act their own law did not treat as capital.

The 1765 case therefore proves that the practice existed, and simultaneously shows what the practice did to Indian confidence in the courts. Both halves belong in an answer.

A worked example

Two questions, and the same case answers each differently.

"Was the application of English criminal law to Nandkumar unprecedented?" No, and Radhacharan Mitra's conviction in 1765 is the proof. English criminal law had been administered at Calcutta under the Charters of 1726 and 1753 by the Governor and Council as Commissioners of Oyer and Terminer, and it had been applied to a Hindu of rank in a capital case.

"Did Indians accept the application of English criminal law to them?" No, and the same case is the proof of that too. The contemporary petition of 1780 records the consternation the conviction caused among Indians precisely because it showed them what could be done.

That is the discipline this paper rewards: the same fact, used for the two different propositions it actually supports, rather than for the one a textbook happens to have attached to it.

What beginners get wrong

"Radha Charan was tried by the Supreme Court." The trial that matters was in 1765, and the Supreme Court was created in 1774. The 1775 proceeding against a man of that name was a charge of conspiracy, not a trial for forgery.

"He was hanged." He was convicted and condemned, and then pardoned.

"The case is about Radha Charan." In practice the case is about Nandkumar: it is cited by both sides in that controversy, and it has no other significance in this syllabus.

Limits and criticism

The honest thing to say about this topic is that MU has printed a case name whose reference is not certain, and that the sources treat it as a footnote to a larger argument rather than as a leading case in its own right. Stephen gives it a paragraph; the Impey Memoirs give it a sentence and a footnote; the contemporary petition gives it a page because of the alarm it caused.

A student should therefore not try to build a large answer out of it. What is worth having is the date, the statute, the outcome, the pardon, and the use to which the case is put in the Nandkumar debate. That is what an examiner can reasonably ask.

Quick revision

• 1765, at Calcutta, before the Supreme Court existed: Radhacharan Mitra, a Hindu of rank, tried for forgery under 2 Geo. II c. 25, convicted and condemned to death, then pardoned by the King.
• Period spellings: Radachurn Mettre, Radachund Mettre.
• Cited by Stephen and by the Impey Memoirs to answer Macaulay's claim that the English forgery statute had never been enforced against Indians at Calcutta.
• The 1780 petition of the British inhabitants records the "general consternation" the conviction caused among Indians.
• A different Radhacharan was charged with conspiracy in the Supreme Court in 1775 along with Nandkumar and Fowke. Distinguish the two.

Test yourself

1. In what year and in what court was Radhacharan Mitra tried, and what was the outcome? In 1765, at Calcutta, before the criminal jurisdiction exercised by the Governor and senior members of Council as Commissioners of Oyer and Terminer under the Charters of 1726 and 1753. He was convicted of forgery under 2 Geo. II c. 25 and condemned to death, and was pardoned.

2. Why is the case cited in the controversy over Nandkumar? Because it shows that the English forgery statute had been applied at Calcutta to a Hindu of rank in a capital case ten years before Nandkumar, which contradicts the claim that it had never been put in execution against Indians there.

3. What does the case NOT prove? It does not show that Nandkumar's execution was unremarkable, because Radhacharan Mitra was pardoned and Nandkumar was not; and it does not show that Indians accepted the application of English criminal law, because the contemporary petition of 1780 records the consternation this very conviction caused.

4. What is the ambiguity in MU's label, and how should it be handled? MU lists the case among cases showing the working of the Supreme Court, but the trial that matters was in 1765, before that Court existed; a different Radhacharan was charged with conspiracy in the Supreme Court in 1775. An answer should give the 1765 trial as the case, state its significance, and distinguish the 1775 conspiracy charge in a sentence.

That objection sounds like a quibble and Impey took some trouble to explain, in his letter to the Court of Directors of 19 September 1775, that it was not. The omission of words alleging a right to imprison without bail was intentional, because if those words had been inserted the return would have been false: Mr Cottrell, the President of the Revenue Council, had said that bail was in fact taken in such cases. Impey added that in cases of disputed demands nothing could be more unjust and oppressive than a power to imprison without bail.

What the Court ordered

The Court ordered the President of the Council to admit Kamaluddin to bail, and directed that he was not to be taken into custody again until the under-renter had been called upon to pay the arrears and had proved insolvent.

Two things are being done. The first is the ordinary work of habeas corpus: a man imprisoned on an insufficient return is admitted to bail. The second is more intrusive: the Court is telling the revenue authority in what order it must pursue its debtors. Impey's justification was that this was the ordinary practice where an under-tenant had been recognised by the revenue authorities, and that it was what common sense required.

The Council's answer, and how far it went

The Governor-General in Council treated the order as an invasion of their rights as Diwan. Their argument was textual, and a student should be able to state it: section 7 of the Regulating Act vested in them "the ordering, management and government of the revenues", and they read that as vesting it exclusively, so that the Supreme Court was, in their words, "not empowered to take cognizance of any matter or cause dependent on or belonging to the revenue".

On that footing they resolved, by a majority, that they ought to direct the Provincial Council to imprison Kamaluddin and his surety and keep them in custody until they paid, and further that the Provincial Councils should give no attention to any order of the Supreme Court or of any judge in matters solely concerning the revenue.

The resolution never took effect, and the reason is worth knowing. One member of the majority declared that he would not assent unless the Governor-General concurred, and Hastings refused his support. So a resolution instructing the whole revenue establishment of Bengal to disobey the King's court was defeated by one man's condition and one man's refusal.

The observation that is worth more than the facts

Stephen's comment on the Council's position is the most useful single sentence in the whole of topic 1.2, and it deserves to be in an answer.

The Court's decision was subject to appeal to the King in Council. The Council's act in refusing to submit to the Court's jurisdiction was, in its nature, subject to no appeal at all.

That is the whole difference between a legal claim and an assertion of power. The Court might have been wrong about the extent of its jurisdiction; if it was, there was a way of correcting it, and the Council had five years in which to use that way and never did. What the Council did instead was to decide the question of jurisdiction in its own favour and propose to enforce that decision by directing its officers to ignore the Court. Stephen calls it an outrageous assertion of military power against law, and says it would have led straight to civil war in the streets of Calcutta. Four years later, at Cossijurah, it very nearly did.

A worked example

Follow the two competing arguments as they would be put today.

For Kamaluddin. I am imprisoned. The writ of habeas corpus requires my gaoler to show lawful authority. The return does not show a power to detain me without bail, and my gaoler's own President admits that bail is taken in such cases. Therefore the return is bad and I must be admitted to bail. Nothing in this argument requires the Court to decide anything about revenue at all: it decides only whether a return to a writ is good.

For the Council. Section 7 vests the ordering, management and government of the revenues in us. Whether an arrear is due, and how it is to be enforced, is management of the revenue. The Court has no jurisdiction over the subject matter, and the writ should never have issued.

Where the argument actually breaks down. The Council is right that it has the management of the revenue; it does not follow that it has the power to imprison a subject without any court examining the authority for the imprisonment. Those are different propositions, and the Council treated them as one. That confusion, between having a power and being unaccountable in the exercise of it, is what every one of the seven proceedings is really about.

Distinctions worth having straight

What beginners get wrong

"The Supreme Court released Kamaluddin." It admitted him to bail, on a defective return. That is a smaller order than a release, and the difference matters when you are asked whether the Court exceeded its jurisdiction.

"The Council ordered the Provincial Councils to disobey the Court." It resolved to, and the resolution failed, because one member made his assent conditional on the Governor-General and Hastings refused. Say "resolved but did not carry out".

"The case was about whether the Court had jurisdiction over Indians." It was about whether it had jurisdiction over a revenue matter, and about the sufficiency of a return to habeas corpus. Kamaluddin was a farmer of the revenue and so arguably in the Company's service under section 14; nobody's status was the difficulty here. The difficulty was subject matter.

Limits and criticism

There are two fair criticisms of the Court in this case, and an answer that makes them is stronger than one that simply defends it.

The direction that Kamaluddin was not to be retaken until the under-renter had been pursued and found insolvent goes beyond deciding whether a return is good. It tells a revenue authority how to conduct its collection. Impey's answer, that this was the recognised practice, is a good answer to a charge of arbitrariness but not to a charge of overreach.

And the Court had no way of knowing, and no means of finding out, what the practice of the revenue administration was, except from the people it was in dispute with. A court that must decide the limits of another authority's powers, on that authority's own evidence, in a system where nobody above them both can decide between them, is in an impossible position. That is a criticism of the Regulating Act, and it is the criticism the Settlement Act of 1781 finally acted on when it excluded revenue matters from the Court altogether.

Quick revision

• 1775. Kamaluddin, period spelling Commaul O Dien, farmer of the revenue for Hidgelee.
• Committed in execution by the Calcutta Council of Revenue for an arrear of revenue; obtained habeas corpus from the Supreme Court.
• The return was excepted to as defective in form: it did not express a power to commit without bail or mainprize, and the omission was deliberate because the President admitted bail was taken in such cases.
• The Court ordered the President to admit him to bail, and that he not be retaken until the under-renter had been called on and proved insolvent.
• The Council said s.7 gave them the revenues exclusively; a majority resolved to direct the Provincial Councils to ignore the Court in revenue matters; the resolution failed because one member conditioned his assent on the Governor-General and Hastings refused.
• The Court's decision was appealable to the King in Council. The Council's refusal was appealable to nobody.

Test yourself

1. What is habeas corpus, and what question does it ask? A writ commanding whoever detains a person to produce him and show the cause of the detention. It asks whether the detention is lawfully authorised, not whether the prisoner is guilty.

2. Why was the return defective, and why was that not a technicality? Because it did not express a power in the Council of Revenue to commit without bail or mainprize. It was not a technicality because the omission was deliberate: inserting those words would have made the return false, since the President of the Revenue Council admitted that bail was in fact taken in such cases.

3. What did the Court actually order? That the President admit Kamaluddin to bail, and that he not be taken into custody again until the under-renter had been called upon to pay the arrears and had proved insolvent.

4. State the Council's argument and the answer to it. That section 7 of the Regulating Act vested the ordering, management and government of the revenues in the Governor-General and Council exclusively, so the Court could take no cognizance of a revenue matter. The answer is that having the management of the revenue is not the same as being unaccountable for imprisoning a subject, and that if the Court was wrong about its jurisdiction the remedy was an appeal to the King in Council, which the Council never attempted.

5. Why did the Council's resolution to ignore the Court come to nothing? Because one member of the majority would not assent unless the Governor-General concurred, and Hastings refused his support.

What the Company's own attorney did

This is the detail that decides how the case should be described, and it comes from the Company's own papers.

The matter was referred to the Company's attorney, who wrote to the Governor-General and Council on 31 August 1777. He said that he had shown the judge, Mr Justice Hyde, "such part of the proceedings as I thought were proper for him to see". He had not chosen to show him the part where the Board resolved to confine Sarup Chand for the balance due as treasurer, because it was not clear to him that the Board was authorised to do that. He added that he could have wished that the ostensible reason for the confinement should be stated as the Rs 10,000 due for revenue.

In plain words: the Company's attorney kept back from the court the true reason for the imprisonment, and wished the Company's servants to give a false account of their conduct.

What the Court decided

Mr Justice Le Maistre delivered an elaborate judgment, which in the end did no more than allow Sarup Chand to give bail. In it he restated the principles Impey had laid down in Kamaluddin's case, and added two propositions that are the substance of the case.

A body cannot be judge in its own cause. As regards the debt due from Sarup Chand as treasurer, the matter in dispute was one of contract, and the Council ought not to be judges in their own cause, nor to enforce what they regarded as their rights by the arbitrary imprisonment of their debtor.

A body claiming a power to imprison must claim it in a name the law knows. Le Maistre observed that a man "might as well say that he was commanded by the King of the Fairies" as by the chief and Provincial Council of Dacca, because that body was not a corporation known to the law. James Mill censured the remark as flippant, and Stephen defends it: there is a clumsy attempt at playfulness in it, but the meaning is clear and is good sense. When a person asserts a right to imprison another, he must claim it either in his own name or in some corporate or official name that the law recognises. The Provincial Council of Dacca was an administrative arrangement of the Company, not a body with legal personality, and it could not point to any instrument that gave it a power to imprison.

A worked example

Set the case out as a modern lawyer would.

• Who detains? The Chief and Council of Dacca.
• Under what authority? None that they can name. They are not a corporation, they hold no commission to imprison, and the statute vests the revenues in the Governor-General and Council at Fort William, not in them.
• For what? Two sums. One is a revenue arrear; the other is a contractual debt to the Company as banker.
• Is the second within their competence at all? No. It is a claim in contract, and the claimant is themselves.
• Is the claimant impartial? No. The member whose loan created the shortfall sat on the board that ordered the imprisonment.
• What relief? Not liberty outright: the Court allowed bail, which leaves the Company's claim intact and takes away only the imprisonment.

Notice how modest the relief is, and hold that thought when you read the Council's complaints of interference.

What the case shows

Stephen's own summary is the sentence to remember: this case shows that there were grievous scandals to be remedied among the provincial Councils, and that their complaints of the interference of the Court were much more natural than justifiable.

That is a precise formulation and it is worth copying. The Councils' irritation was natural: they were being sued, examined and overruled by a court that had arrived from England three years earlier and did not understand revenue administration. It was not justifiable: the thing the Court stopped them doing was imprisoning a man to recover a private debt owed partly to one of their own members, on no authority they could name.

What beginners get wrong

"The Court released Sarup Chand." It allowed him to give bail, after an elaborate judgment. The relief in these habeas corpus cases is consistently narrower than students assume.

"The Council imprisoned him for revenue arrears." For two things: an arrear of revenue as surety, and a balance as treasurer. The second is the one that mattered, and it is the one the Company's attorney kept out of the judge's sight.

"The King of the Fairies remark shows the judges were contemptuous of Indian institutions." It was said about a Provincial Council of the Company, that is, about a body of Englishmen, and its point was legal: a body that is not a corporation known to the law cannot claim a power to imprison. Mill's criticism of the phrasing is fair; the criticism of the substance is not.

Limits and criticism

The case is the best available answer to the charge that the Supreme Court was simply oppressing the Company's administration, and a student should use it that way.

But it also shows the structural problem from the other side. The Court could correct a particular abuse in a particular case, at the instance of a man rich enough and bold enough to come to Calcutta and hire counsel. It could not reform the Provincial Councils, which is what was actually needed, and it had no way of knowing how many Sarup Chands there were in Dacca, Patna and Murshidabad who never applied to it.

That is the argument for the answer eventually adopted in 1780 and 1793: not a court supervising an unreformed administration case by case, but an administration reorganised so that the officer who collects is not the officer who judges. Sarup Chand's case is the strongest evidence for the need, and the weakest possible remedy for it.

Quick revision

• 1777, Dacca. Sarup Chand, period spelling Seroop Chund: malzamin, surety for revenue, Rs 10,000; and kazanchi, treasurer to the Dacca Council, Rs 66,745.
• He could not pay because he had lent the Company's money to the Company's servants, including Rs 10,000 to Mr Shakespeare, a member of the Dacca Council.
• The Board ordered him confined; Shakespeare sat on the board that ordered it.
• The Company's attorney withheld from the judge the part of the proceedings showing the true reason, and wished the ostensible reason to be the revenue arrear.
• Le Maistre J.: the Council may not be judge in its own cause in a matter of contract, and a body claiming a power to imprison must claim it in a name the law knows, the Dacca Council being no corporation known to the law.
• Relief: bail.
• Stephen: the Councils' complaints of interference were more natural than justifiable.

Test yourself

1. In what two capacities was Sarup Chand liable, and for how much? As malzamin, surety for the payment of revenue, for Rs 10,000; and as kazanchi, treasurer to the Dacca Council, for Rs 66,745.

2. Why could he not pay the treasury balance? Because he had lent a considerable part of it to servants of the Company, including Rs 10,000 to Mr Shakespeare, a member of the very Council that ordered his confinement.

3. What two principles did Le Maistre state? That a body may not be judge in its own cause and may not enforce what it regards as its rights by arbitrarily imprisoning its debtor, the matter being one of contract; and that a body claiming a right to imprison must claim it in its own name or in a corporate or official name known to the law, which the Provincial Council of Dacca was not.

4. What did the Company's attorney do, and why does it matter? He showed the judge only part of the proceedings, deliberately withholding the resolution to confine Sarup Chand for the treasury balance because he doubted the Board's authority to do it, and wished the revenue arrear to be given as the ostensible reason. It matters because it shows that the Company's own legal adviser knew the imprisonment could not be justified.

5. How should the case be used in an answer about the conflict between the Court and the Council? As the clearest evidence that the Councils' complaints of interference were, in Stephen's words, more natural than justifiable: the interference complained of consisted of stopping an imprisonment ordered without authority by a board that included the debtor whose loan had caused the shortfall.

What the Council did, and why it is the point of the case

The Governor-General in Council refused the compromise. Their minute records three things.

That this was the first instance in which the members of a Diwani court had been sued as individuals in the Supreme Court for acts done in their judicial characters.

That to compromise the suit would weaken the authority of the courts.

And that the suit ought to take its course, so that it could be ascertained by a legal decision whether such an action lay.

Read that again, because it is the opposite of what the Council did in every other case in this chapter. Here they wanted the question litigated. They were right to, and it is the single strongest answer to the charge that the Council simply resisted the Court's jurisdiction whenever it was inconvenient: when they thought the law was on their side, they asked for a decision.

The question, and the answer the Court had already given

The question is one every legal system has to answer: is a judge liable to be sued for what he does as a judge?

Every system answers no, or nearly no, and for a reason that has nothing to do with protecting judges. A judge who can be sued by the losing party will decide cases with an eye to the risk of being sued, which means he will not decide them on their merits. The immunity exists for the litigant's benefit, not the judge's.

The difficulty in 1779 was that the Company's adalats were not obviously courts. They had been set up by the Company under a plan of 1772 that Parliament had not authorised, their presiding officers were revenue servants, and the Regulations of 1780 were not registered in the Supreme Court. If they were not courts, their officers were merely officials doing acts, and an official who imprisons or dispossesses somebody without lawful authority is liable like anybody else.

Stephen summarises the effect of the decisions the Supreme Court had in fact given up to 1779, from the report of Touchet's Committee, and it is not the answer the Council complained of:

• The courts established by the Company were recognised as courts of justice, whose judges were not liable to actions for their judicial proceedings, even if irregular, unless corrupt.
• They had a right to hold revenue debtors to bail for revenue debts, and to confine them by putting peons on them or in prison until bail was given to appear before the Diwani court.
• But they had no right to imprison them without bail in order to secure payment of what might ultimately be found due.

That is a coherent and rather moderate position: the adalats are courts, their judges are protected, and what is not protected is imprisonment without bail to secure a disputed sum.

A worked example

Apply the Supreme Court's stated position to the three cases you have now read.

Kamaluddin. Imprisoned to secure payment of a disputed arrear, on a return that did not show a power to commit without bail. Within the third proposition: no right to imprison without bail. Bail ordered.

Sarup Chand. Imprisoned by a body that was not a corporation known to the law, to recover a debt owed partly to one of its own members. Not a judicial act at all; the Council was acting as a creditor. Bail ordered.

Dutt v. Hosea. A judge of a Diwani Adalat sued for the manner in which he conducted a suit. Within the first proposition: a judicial proceeding, irregular perhaps but not alleged to be corrupt, and so protected.

Three cases, one consistent rule, applied to three different situations. A student who can do that has understood topic 1.2 better than one who has memorised seven stories.

What beginners get wrong

"The Supreme Court held that the Company's courts were not courts." It held the opposite, and Stephen sets the propositions out from the record. The belief that it held otherwise is the received account and it is wrong.

"The Council resisted the Court in this case." In this case the Council asked for the question to be decided and refused a compromise its own Advocate-General recommended. That is the fact that makes the case worth teaching.

"Gora Chand Dutt was the defendant." He was the person against whom the adalat's proceedings had been taken. The defendant in the Supreme Court was Hosea, the judge.

Limits and criticism

The case exposes the deepest defect of the whole arrangement, which is not about jurisdiction at all.

The Supreme Court was being asked to decide whether the Company's courts were courts. Whatever it decided, it was deciding on the status of a rival institution in a dispute to which the Company was a party, with no superior tribunal in India to review it and no statute that answered the question. The Council was right that a legal decision was needed. It was wrong to suppose that a decision by one of the two contending bodies could settle anything.

Only Parliament could, and in 1781 Parliament did: the Settlement Act declared that no action should lie in the Supreme Court against any judicial officer of the country courts in respect of any judgment or order of his court, nor against any person for an act done in pursuance of such an order, it being considered reasonable to render the provincial magistrates, Indian and British alike, more safe in the execution of their office. That provision is the direct answer to Dutt v. Hosea, and a student who can say so has connected topic 1.2 to topic 1.3.

Quick revision

• 1779. Dutt v. Hosea, MU's "Gora Gopichand's Case".
• Hosea, head of the Diwani Adalat at Murshidabad, sued personally in the Supreme Court for irregularities in the proceedings against Gora Chand Dutt.
• The irregularity: claim and counterclaim heard together, judgment for the defendant for more than the plaintiff had claimed, then execution against body, goods and outstanding debts.
• Advocate-General Sir John Day advised that the Council would lose and recommended a compromise.
• The Governor-General in Council refused, because it was the first such suit against judges of a Diwani court as individuals for judicial acts, and the question ought to be decided.
• What the Supreme Court had in fact held by 1779: the Company's courts are courts; their judges are not liable for judicial acts unless corrupt; they may hold revenue debtors to bail; they may not imprison without bail to secure a disputed sum.
• The Settlement Act 1781 later barred such actions by statute.

Test yourself

1. Who sued whom, and for what? Gora Chand Dutt's litigation produced a suit in the Supreme Court against Mr Hosea, the head of the Diwani Adalat at Murshidabad, for irregularities in the procedure that court had followed, namely hearing claim and counterclaim together, giving judgment against the plaintiff for more than had been claimed against him, and enforcing it against body, goods and outstanding debts.

2. Why did the Governor-General in Council refuse to compromise? Because it was the first instance of the members of a Diwani court being sued as individuals for acts done in their judicial characters, because a compromise would weaken the authority of the Company's courts, and because they wanted the question settled by a legal decision.

3. State the three propositions the Supreme Court had in fact laid down by 1779. That the Company's courts were recognised as courts of justice and their judges were not liable to actions for judicial proceedings, even irregular ones, unless corrupt; that they might hold revenue debtors to bail and confine them until bail was given; and that they might not imprison such debtors without bail to secure payment of what might ultimately be found due.

4. How did Parliament answer the question this case raised? By providing in the Settlement Act of 1781 that no action should lie in the Supreme Court against any judicial officer of the country courts in respect of any judgment or order of his court, nor against any person for an act done in pursuance of such an order.

5. Why is a judge's immunity from suit granted for the litigant's benefit rather than the judge's? Because a judge who may be sued by the loser will decide with an eye to that risk instead of on the merits, and it is the litigant who then suffers.

The Kazi and Muftis went to the house, after difficulty and a dispute about whether Khwaja Zakaria was the widow's attorney, got in, locked it up and sealed some of the doors. They returned a few days later and made an inventory. It was said that on that occasion they behaved very roughly, compelling the plaintiff by threats of force to leave one room after another until she took refuge in a filthy outhouse open to a common bazaar, and that after further indignities she retired to the dargah of Shah Azam, a shrine inhabited by faqirs who gave her hospitality.

A guard was set on her by the Council there, in the words of a letter from Mr Law to Hastings, "to intimidate her to give up the slave-women, papers, and seal of the deceased". She remained under restraint for about three months. At first the guards would not even allow the faqirs to give her food, and they did so secretly; the strictness was afterwards relaxed.

The report the officers were never asked for

The Kazi and Muftis then held an inquiry and sent in a report, delivered before 20 January 1777.

It began by describing itself as a report "on the right of inheritance claimed by the widow and nephew", and described its authors as having been "appointed in an inquiry relative to the right of inheritance claimed respectively by the widow and nephew".

That was not the fact. They had been appointed only to take an inventory, lock up the goods under seal, and report to the Council. Deciding a disputed right of inheritance is an entirely different thing.

The report then stated the nature of the dispute for the first time: that Bahadur Beg claimed as adopted son, that the widow claimed under a will and a deed of gift, and that both the will and the deed of gift were forged. It recommended that the property, excluding the altamgha (a revenue-free grant, which they said formed no part of the inheritance), be divided into four shares, three to Bahadur Beg and one to the widow.

How the facts were ascertained is the part a law student should dwell on. There was no proceeding in the nature of a trial. The most important facts were established by statements made in casual conversation, not on oath, and in some instances by writing notes to persons regarded as witnesses and receiving verbal answers back. Impey observed with justice that they accepted the bare statement of the claimant as proof of his claim because it "appeared clear and explicit", without any evidence at all. Stephen's own conclusion is that the report betrays such an absolute unconsciousness of the plainest requirements of evidence as to give an impression of innocence and good faith.

The suit and the judgment

The widow sued the members of the Patna Provincial Council and the law officers in the Supreme Court at Calcutta.

The Court gave judgment for the plaintiff, and assessed the damages on the principle that she had been deprived of property in her possession, to which she was not shown not to be entitled, by an act corrupt and oppressive in its essence and executed in a way needlessly brutal and offensive.

The damages were three lakhs of rupees. Some of the law officers were afterwards sued separately and Rs 15,000 damages were given.

What the case proves, on the evidence

Four points are clear on the record and an answer that gives them is well grounded.

The widow was treated with great harshness and underwent great indignities, and she never received even the quarter of the property the report had assigned to her.

The report was, whether made in good faith or not, to the last degree weak and poor, and rested on no evidence in any recognisable sense.

The Patna Council was guilty of a gross desertion of duty. The proof is not the Supreme Court's judgment but a letter from Warren Hastings to the Patna Council of 12 January 1778, who certainly had no leaning towards the Supreme Court, taking notice of great irregularity in the proceedings of the law officers, whose business had been solely to take an inventory.

And if Patna was a fair specimen, the Provincial Councils considered as courts of justice were worthless, and no system of justice deserving the name existed at that time outside Calcutta. That is Stephen's conclusion and it is the conclusion the case is set for.

What can fairly be said on the other side

Impey's view was that the proceeding was gross oppression and plunder of a helpless widow, effected by a false accusation of forgery. Mr Law, of the Patna Council, wrote to Hastings that the struggle was really between Khwaja Zakaria and others on one side and Bahadur Beg on the other, for the charge of the widow and the possession of the estate, "and this is ever the case where the widow has a claim to any considerable inheritance". Warren Hastings, in a minute, gave reasons for thinking that the deeds really were forged and that the report was not only made in good faith but was true.

Stephen says frankly that he has not studied the question enough to give an opinion, and that strong observations arise on both sides. A student is entitled to say the same. Whether the widow's deeds were genuine was never properly tried by anybody, and that is the point: the objection to what the Patna Council did is not that they reached the wrong result but that they reached a result without a trial.

Distinctions worth having straight

A worked example

Take the same facts and change one of them at a time, to see exactly which fact decided the case.

As it happened. Shahbaz Beg Khan dies at Patna, in the mofussil. His nephew Bahadur Beg petitions the Patna Provincial Council; the Council orders its Kazi and Muftis to take an inventory and report; they go far beyond that order, and the widow Nadirah Begum sues the members of the Council and the law officers in the Supreme Court at Calcutta, which entertains the suit, gives judgment for her and assesses damages at three lakhs of rupees.

Change one fact: the property is in Calcutta. Then the Supreme Court's jurisdiction is not open to doubt at all. Everything contentious in the case comes from the property and the parties being in the mofussil, where the Company's own courts sat under the Company's own regulations.

Change another: the defendants are not the Company's servants. The Supreme Court's jurisdiction over persons in the mofussil rested on their being in the Company's service, and it was that link, and how far it reached, that the Regulating Act had left unclear.

Change a third: the case is heard after 1781. Then the Settlement Act's protection of provincial judges applies: no action lies in the Supreme Court against a judicial officer of a country court in respect of a judgment or order of his court, nor against any person for an act done in pursuance of such an order. Whether the bar reaches these facts depends on how the law officers' acts are characterised, which the chapter has already discussed; what is certain is that the inheritance itself would be decided by Muslim law, as that Act directs.

That is the point of the case in one line. The Patna case is not about whether the Council decided the inheritance rightly; it is about whether a court in Calcutta could sit in judgment on the Company's officers for the way they had decided it in Patna, and Parliament's answer in 1781 was to protect them.

What beginners get wrong

"The Supreme Court interfered with a decision of a Company court." It gave damages against officials for acts done outside the authority they were given. The Kazi and Muftis were told to take an inventory and instead decided an inheritance, and the Council acted on it. Compare [Gora Chand's Case: Dutt v. Hosea, 1779], where the act complained of really was a judicial act and the Court's stated position protected it.

"The damages were against the Kazi and Muftis." The suit was against the members of the Provincial Council and the law officers, and the three lakhs was the award in that suit. Some law officers were sued separately afterwards and Rs 15,000 was given.

"Hastings supported the widow." Hastings thought the deeds probably were forged. What he criticised was the irregularity of the officers' proceedings, and that criticism is worth citing precisely because it comes from a man opposed to the Supreme Court.

Limits and criticism

The case is the strongest evidence in the whole syllabus that something outside the Company was needed, and it is also the clearest illustration of why the remedy chosen did not work.

Three lakhs of rupees was a very large sum, awarded against individual members of a Provincial Council for the acts of officers under them. Whatever the merits, an award on that scale, in a court sitting hundreds of miles away, applying English law and English notions of procedure to a Muslim inheritance at Patna, was certain to be experienced by the Company's servants as an attack, and it was. The Patna case, more than any other, is what turned the Council's irritation into a determination to be rid of the Court's jurisdiction, and the Cossijurah crisis followed within a year.

The right conclusion is the uncomfortable one. The Court was substantially right about what had been done to Nadirah Begum, and the remedy it gave made the constitutional crisis worse rather than better. Only Parliament could resolve that, and in 1781 it did, by taking the provincial courts and their officers out of the Supreme Court's reach altogether.

Quick revision

• Shahbaz Beg Khan died at Patna 10 December 1776; his widow Nadirah Begum in possession.
• Nephew Bahadur Beg petitioned the Patna Provincial Council within three weeks, claiming as adopted son.
• The Council ordered the Kazi and Muftis to take an inventory and report. They proceeded ex parte, sealed the house, drove the widow out, and a guard was set on her at a shrine for about three months.
• Their report decided a question they were never asked: the deeds were forged, three quarters to Bahadur Beg, one quarter to the widow, excluding the altamgha. It rested on statements not on oath and on notes answered verbally.
• The widow sued in the Supreme Court; judgment for her; damages three lakhs of rupees; Rs 15,000 afterwards against law officers sued separately.
• Warren Hastings himself criticised the irregularity, in a letter to the Patna Council of 12 January 1778.

Test yourself

1. What were the Kazi and Muftis actually directed to do, and what did they do? They were directed to take an inventory of the property, secure it under seal until decision and division, and report to the Council. They instead held an inquiry into the disputed right of inheritance and reported that the widow's will and deed of gift were forged and that three quarters of the estate should go to the claimant.

2. On what principle did the Supreme Court assess damages, and how much were they? On the principle that she had been deprived of property in her possession, to which she was not shown not to be entitled, by an act corrupt and oppressive in its essence and executed in a needlessly brutal and offensive way. The damages were three lakhs of rupees, with a further Rs 15,000 in separate suits against law officers.

3. Give the evidence, independent of the Supreme Court, that the Patna Council failed in its duty. Warren Hastings, who had no leaning towards the Supreme Court, wrote to the Patna Council on 12 January 1778 taking notice of great irregularity in the proceedings of the law officers, whose business had been solely to take an inventory.

4. Was it ever decided whether the widow's deeds were genuine? No. Hastings thought they probably were forged; Impey thought the whole proceeding was a plunder of a helpless widow effected by a false accusation of forgery; Stephen declined to give an opinion. The objection to the Council's conduct is that it produced a result without any proceeding in the nature of a trial.

5. Why did this case make the constitutional crisis worse? Because a very large award of damages against the members of a Provincial Council, made by a distant English court applying English notions to a Muslim inheritance, convinced the Company's servants that the Court's jurisdiction had to be resisted, and the Cossijurah crisis followed within a year.

The proclamation. An order was issued to all landholders informing them that they were subject to the Court's jurisdiction only if they were servants of the Company or had subjected themselves by consent, and that if they did not fall within either class they were to pay no attention to the process of the Court. Impey complained that its terms were intentionally disrespectful to the Court and to the King, who was called "the English King" without any title, the object being to avoid conveying the notion that the King of England had any authority as King in Bengal.

Force, first round. The Zamindar, having a special direction to the same effect, ignored the Court's further process. His people beat off the sheriff and his officers when they tried to take him under a capias, a writ commanding the sheriff to take the defendant's body.

Force, second round. A writ of sequestration issued, to seize his property and so compel an appearance. The sheriff collected a force of fifty or sixty sailors and others who marched armed from Calcutta to Cossijurah, and, it was alleged by the Zamindar, executed it with great violence and with acts of disrespect towards his idol and his zenana.

Force, third round. The Governor-General and Council ordered Colonel Ahmuty, commanding troops at Midnapore, to march a force of sepoys against the sheriff's party and arrest them. He did so. Process against the officer commanding the troops, as for a contempt, was also prevented by military force.

The suit against the Government. The plaintiff then brought actions against Hastings and the other members of Council individually. They first entered appearances, but on seeing the terms of the plaint, which showed that they were sued for acts done in their public capacity, all except Barwell caused their counsel to declare in court that they withdrew their appearances and would not submit to any process the Court might issue against them.

The only casualty. The one person who actually suffered was Naylor, the Zamindar's attorney, required to answer interrogatories about his part in the matter and committed for contempt for refusing.

The correction: what the case was NOT about

Most textbooks say that the Council resisted because the Supreme Court had claimed jurisdiction over zamindars as such, as revenue collectors. Stephen, who read the record, says in terms that this is entirely incorrect.

The Court never held that zamindars as such were in the Company's employment and so subject to its jurisdiction. It uniformly held the reverse.

The evidence he gives is the Company's own. Bogle, reporting to the Council on 13 November 1778, a year before the Cossijurah suit, wrote that since the establishment of the Supreme Court no question had been agitated before it that could bring the rights of the zamindars into discussion; that many suits had indeed been commenced against them, but that they had always pleaded to the jurisdiction, and except where the cause happened to be managed by an unskilful attorney, their plea had always been sustained. They had been considered as landholders possessed of extensive territories paying a land tax to government, and this exception of the zamindars from the jurisdiction had done more than anything else to limit the embarrassment caused by the introduction of so new an institution.

A plea to the jurisdiction is a defence that the court has no authority to try the case at all, taken before any defence on the merits. Bogle's point is that zamindars had been making that plea for five years and winning.

So the dispute at Cossijurah was not about a rule of law the Court had laid down. It was about a single affidavit in a single case, asserting that this particular zamindar was employed in the collection of the revenues. The proper answer to a false affidavit is to appear and plead to the jurisdiction, exactly as other zamindars had been doing successfully. What the Advocate-General advised, and what the Council ordered, was that he should not appear at all.

Why the Council really acted

Stephen sets out the reasons, and they are more honest than the legal argument.

The Council hated the Court, and had reasons that were natural and intelligible. It represented an authority the Company's servants practically repudiated. It represented English law, which they disliked both for its defects, then great, and for its merits. They thought it a grievance, and it was one, that Bahadur Beg should be brought from Patna to Calcutta to plead in a purely English court. They probably felt it a much greater grievance that the ijaradars and zamindars should be interfered with when, in order to pay their revenue punctually, they squeezed their ryots in ways an English lawyer would call oppressive.

And they were not sure they were right. Stephen's judgment on this is the sentence to quote. If they had been sure, they would have taken the straightforward legal course of getting a direct decision from the Court on the questions that concerned them, and testing it by appeal to the King in Council. They could easily have done so and had five years, from 1775 to 1780, in which to do it. Impey suggested it repeatedly. From that test they invariably shrank. Having the military force in their hands, and public feeling with them, they preferred to use that force rather than to appeal to the common superior of both Court and Council.

A worked example

Suppose you act for the Zamindar of Cossijurah in September 1779. What should you have advised?

1. Appear, and take a plea to the jurisdiction. The affidavit says your client is employed in the collection of the revenues; he says he is a landholder paying a land tax. That is a question of fact and it is the very question on which zamindars had been succeeding since 1775.
2. If the plea fails, defend on the merits, and if you lose, appeal to the King in Council, which lies from the Supreme Court.
3. Do not stay away. A defendant who ignores process invites a capias and then a sequestration, which is exactly what happened, and loses the only forum in which the jurisdictional point can be decided in his favour.

That advice was available, obvious, and not taken, because the Government preferred a confrontation to a decision. The result was armed men from Calcutta meeting sepoys from Midnapore in a district of Bengal, and a Governor-General declaring through counsel that he would not obey the King's court.

What beginners get wrong

"The Supreme Court claimed jurisdiction over all zamindars." It did not, and it consistently sustained their pleas to the jurisdiction. This is the error that the record contradicts most directly.

"The Court decided the Cossijurah case." There was no decision on the merits. The case is famous for what happened outside the courtroom.

"The Government had no legal remedy." It had one and refused to use it for five years: a decision on the jurisdictional question and an appeal to the King in Council.

"Hastings was arrested." Nobody in the Government was arrested. Section 17 forbade the arrest of their persons, and in any case they withdrew their appearances. The only person committed was Naylor, the Zamindar's attorney, for contempt in refusing to answer interrogatories.

Limits and criticism

The case is the crisis of Module I, and the right way to describe it is as a breakdown of the constitution rather than a dispute about the law.

Two authorities existed in Bengal, both deriving from the Crown, one a court and one a government, and there was no institution in India competent to decide between them. The Act had created that situation and had provided no machinery for resolving it. When the disagreement became sharp enough, the body with the soldiers won, and told the whole of Bengal outside Calcutta that the King's court could be ignored.

That is intolerable in any system, whichever side was right about section 14, and it is why Parliament had to intervene. The Settlement Act of 1781 did three things directly traceable to this case: it took the Governor-General and Council out of the Court's jurisdiction for acts done in their public capacity, it took revenue matters out of the Court altogether, and it indemnified the Governor-General, the Council, the Advocate-General and everybody acting under their orders for their resistance to the Court's process between 1 January 1779 and 1 January 1780, reciting that in the hostilities between Court and Council "many things have been done not justifiable by the strict rule of the law".

An Act of Parliament which has to indemnify a government for disobeying a court is the clearest possible admission that the system had failed.

Quick revision

• 13 August 1779: Kashinath Babu sues the Zamindar of Cossijurah in the Supreme Court on an affidavit that he was employed in the collection of the revenues (s.14).
• Advocate-General Sir John Day advises that the Zamindar should not appear or plead; a general proclamation tells landholders to ignore the Court's process unless they are the Company's servants or have consented.
• The Zamindar's people beat off the sheriff under a capias; a writ of sequestration issues; the sheriff marches with fifty or sixty armed men.
• The Council sends Colonel Ahmuty with sepoys, who arrest the sheriff's party.
• The plaintiff sues Hastings and the Council personally; all but Barwell withdraw their appearances and refuse to submit to process.
• Only Naylor, the Zamindar's attorney, suffers: committed for contempt.
• The Court never held that zamindars as such were subject to it: Bogle's report of 13 November 1778 records that their pleas to the jurisdiction had always been sustained.
• The Council never appealed to the King in Council, though five years and repeated suggestions were available.

Test yourself

1. What was the jurisdictional foundation of the suit, and why was it contestable? The affidavit filed on 13 August 1779 stating that the Zamindar was employed in the collection of the revenues, which brought him within section 14's class of persons employed by or in the service of the Company. It was contestable because a zamindar was ordinarily treated as a landholder paying a land tax, not as a servant, and pleas to the jurisdiction on that footing had regularly succeeded.

2. State the correction this case requires to the usual textbook account. That the Supreme Court had claimed jurisdiction over zamindars as such. It had not; it uniformly held the reverse, and Bogle's report to the Council of 13 November 1778 records that zamindars' pleas to the jurisdiction had always been sustained except where the cause was managed by an unskilful attorney.

3. What was the Council's real objection, on Stephen's account? Not a settled view that the Court was wrong in law, but dislike of a court representing an authority they repudiated and English law they distrusted, and unwillingness to have their revenue administration interfered with. Stephen's proof is that they never took the available legal course of obtaining a decision and appealing to the King in Council, though Impey repeatedly suggested it.

4. What happened when the plaintiff sued the members of Council personally? They entered appearances, and on seeing that they were sued for acts done in their public capacity all except Barwell had their counsel declare that they withdrew their appearances and would not submit to any process of the Court.

5. How did Parliament respond to what happened here? By the Settlement Act of 1781, which took the Governor-General and Council out of the Court's jurisdiction for public acts, excluded revenue matters, and indemnified the Governor-General, the Council, the Advocate-General and all acting under their orders for their resistance to the Court's process between 1 January 1779 and 1 January 1780, reciting that many things had been done not justifiable by the strict rule of the law.

The Court's stated position being more moderate than its reputation. By 1779, on the record of Touchet's Committee, the Court had held that the Company's courts were courts of justice, that their judges were not liable for judicial acts unless corrupt, that revenue debtors could be held to bail, and only that they could not be imprisoned without bail to secure a disputed sum. Dutt v. Hosea is the case in which that question was squarely raised, and the Council itself asked for it to be decided. And on the question everybody remembers, jurisdiction over zamindars, Bogle's own report of November 1778 records that their pleas to the jurisdiction had always been sustained.

The system with no umpire. Cossijurah is not a case about law at all. It is what happens when two authorities disagree and neither can be overruled. And the trial of Nandkumar is the same defect on the criminal side: a capital conviction, no appeal, and the only check the judges' own power to respite, which they held and did not exercise.

The Council's case, put at its highest

A good answer does not treat the Company's servants as villains, and there is a serious case for them.

The Court was staffed by men who had arrived from England and knew nothing of revenue administration, of the languages, or of the customs of the country, and it applied English process to people who, in the words of a Burdwan diwan quoted at the time, threatened others with habeas corpus and damages without any of them being able to say what a habeas corpus was, or what damages were, or what a writ or a summons was.

Its process was ruinous even to those who won: a talukdar might be ruined by the expense of pleading to the jurisdiction though he prevailed, and in one action in which Rs 400 was recovered the costs exceeded Rs 1,600.

And its interventions did fall on the revenue, which was the Company's whole business in Bengal and, at that date, the security for the Company's solvency.

The answer to all of that is Stephen's, and it is decisive: the way to correct a court that has exceeded its jurisdiction is to obtain a decision and appeal from it. That way was open for five years and was never taken.

The Court's case, put at its highest

Equally, an answer that treats Impey and his colleagues as oppressors has to explain three facts.

They sustained zamindars' pleas to the jurisdiction, consistently, and thereby kept most of Bengal outside their reach.

They held that the Company's own courts were courts and that their judges were immune for judicial acts unless corrupt, which is the opposite of an imperial claim.

And every abuse they restrained was a real abuse, admitted in the Company's own papers: the attorney who withheld the proceedings, the councillor who sat on the board that imprisoned his creditor, the officers who decided an inheritance they had never been asked about.

The criticism that survives is narrower, and a student should make it precisely. The Court's remedies were English remedies in an Indian setting, and its costs and its process were ruinous. It did not adapt, and it had almost no power to adapt, because its process came from a Charter it could not alter.

A worked example: answering the standard question

"Discuss the working of the Supreme Court at Calcutta with reference to decided cases."

A good answer has five moves.

1. Establish the Court: section 13 of the Regulating Act, the Charter of 26 March 1774, four judges, five jurisdictions, King's Bench powers, appeal to the King in Council.
2. State the three defects above, in one sentence each.
3. Take the cases in groups, not in a list: the three habeas corpus and damages cases showing real abuse restrained; Dutt v. Hosea and the zamindar question showing the Court's actual position; Nandkumar and Cossijurah showing the absence of any umpire.
4. Put both sides, using the Company's own documents on each: Hastings's letter of 12 January 1778 against the Patna Council; the Company's attorney's letter of 31 August 1777 in Sarup Chand; Bogle's report of 13 November 1778 on the zamindars; and against the Court, the costs figures and the Burdwan diwan's complaint.
5. Conclude with the remedy Parliament chose, which is the Settlement Act of 1781, and say what it changed. That connects topic 1.2 to topic 1.3 and is what separates a first-class answer from a competent one.

Distinctions worth having straight

What beginners get wrong

"The Supreme Court was a failure." It was a failure in its first six years, on its founders' own terms, and Cowell records that afterwards, with diminished powers, it won its way to greater authority and respect among Europeans and Indians alike than any other tribunal that has ever existed in India. Say both.

"The judges were to blame." The judges decided cases as they arose under a statute that did not tell them what law to apply or over whom. The blame that sticks to Impey personally is a different matter: accepting from the Council, in 1780, the office of Judge of the Sadar Diwani Adalat with a salary held at their pleasure.

"The Council were to blame." They were, for using force instead of an appeal. They were not for objecting to a jurisdiction whose limits nobody had defined.

Quick revision

• Three defects of the Regulating Act: no rule as to the applicable law; no definition of who was subject; no authority in India competent to decide between the Court and the Government.
• Group one, real abuse restrained: Kamaluddin, Sarup Chand, the Patna case.
• Group two, the Court's actual position: Dutt v. Hosea; and Bogle's report that zamindars' pleas to the jurisdiction were always sustained.
• Group three, no umpire: Nandkumar (no appeal from a capital conviction) and Cossijurah (settled by sepoys).
• For the Council: ignorance of the country, ruinous costs, damage to the revenue. Against them: they never appealed to the King in Council in five years.
• For the Court: every abuse it restrained was admitted in the Company's own papers. Against it: English remedies, English costs, no power to adapt.
• The remedy: the Settlement Act of 1781.

Test yourself

1. State the three defects of the Regulating Act that the working of the Supreme Court exposed. That it did not say what law the Court was to apply; that it did not define who was subject to its jurisdiction, leaving the questions of who was a British subject and whether the Company's acquisitions amounted to sovereignty to be decided case by case; and that it provided no authority in India competent to decide between the Court and the Government.

2. Group the seven proceedings by what each shows. Kamaluddin, Sarup Chand and the Patna case show real abuse restrained; Dutt v. Hosea shows the Court's moderate stated position on the status of the Company's courts and their judges; Nandkumar and Cossijurah show the absence of any umpire, on the criminal side and on the civil side respectively; and the trial of Radhacharan Mitra is used in the debate about whether English criminal law had previously been applied to Indians at Calcutta.

3. What is the single strongest answer to the Council's complaint of usurpation? That the Court's decisions were appealable to the King in Council, that the Council had five years in which to obtain a decision and appeal, that Impey repeatedly suggested it, and that they never did it.

4. What is the single strongest criticism of the Court that survives? That its remedies, its process and its costs were English and ruinous, and unsuited to the country; a talukdar might be ruined by the expense of successfully pleading to the jurisdiction, and in one case costs of over Rs 1,600 were incurred to recover Rs 400.

5. Why is it wrong to say simply that the Supreme Court failed? Because it failed only in its first phase, under a statute that made failure very likely. After 1781, with reduced jurisdiction, it acquired greater authority and respect among Europeans and Indians than any earlier tribunal in India.

Three: the provincial judges are protected. The Act declared that no action should lie in the Supreme Court against any judicial officer in the country courts in respect of any judgment or order of his court, nor against any person for any act done in pursuance of such an order, it being considered "reasonable to render the Provincial Magistrates, as well Native as British subjects, more safe in the execution of their office". This is the answer to Dutt v. Hosea and, indirectly, to the Patna case.

Four: personal law is prescribed. Where either party was a Muslim or a Hindu, matters of inheritance and succession to lands, rents and goods, and matters of contract and dealing between party and party, were to be determined by Muslim law for Muslims and Hindu law for Hindus; and where only one of the parties was a Muslim or a Hindu, by the laws and usages of the defendant. In addition, the rights and authorities of fathers and masters of families, as they might have been exercised under Hindu or Muslim law, were preserved to them, and it was provided that no act done in consequence of the rule and law of caste, respecting the members of those families only, should be adjudged a crime "although the same may not be held justifiable by the laws of England". The Supreme Court might also frame process and make rules to accommodate suits against Indians to their religion and manners, subject to the royal approbation, correction or refusal.

This is the answer to the trial of Nandkumar, and it is the first time an Act of Parliament tells a court in India what law to apply to Indians. Note the choice-of-law rule in the second half: where the parties are of different religions, the defendant's law governs. That is a real conflict-of-laws rule, and it is the ancestor of much later Indian doctrine.

Five: the Company's own courts are recognised and given a legislature. This, says Cowell, is perhaps the most important part of the Act and the part that most completely reversed the policy of 1773. Parliament recognised the civil and criminal provincial courts as existing independently of the Supreme Court; recognised the Governor-General and Council, or a committee of them, as the chief appellate court of the country; and vested the Council with power to frame regulations for those provincial courts independently of the Supreme Court.

Section 21 enacted that the Governor-General and Council should lawfully hold all such pleas and appeals from the country or provincial courts in civil causes as it had hitherto held, with the same powers, that it should be deemed in law a Court of Record, and that its judgments should be final and conclusive except upon appeal to His Majesty in civil suits of the value of £5,000 and upwards.

Section 23 enacted that the Governor-General and Council should have power from time to time to frame regulations for the provincial courts and councils, with a proviso that His Majesty in Council might disallow or amend them within two years.

Six: the past is indemnified. With regard to the hostilities between Court and Council, in which, said the Act, "many things have been done not justifiable by the strict rule of the law", the Governor-General and Council, the Advocate-General and all persons acting under their orders were indemnified, discharged and saved harmless from any action, suit or prosecution on account of their disobedience and resistance to the execution of the Court's orders from 1 January 1779 to 1 January 1780.

A worked example

Take each of the seven proceedings and ask what would have happened after 1781.

Kamaluddin and Sarup Chand: revenue matters, now outside the Court. Their remedy is under section 22, before the Governor-General in Council.

Dutt v. Hosea: an action against a judicial officer of a country court for a judgment of his court. Barred expressly.

The Patna case: harder, and the answer is instructive. The acts complained of were done by law officers of a Provincial Council in a matter of inheritance. If characterised as acts of a country court in respect of its orders, the action is barred; if characterised as acts done outside any authority, the bar may not apply. What is certain is that the underlying dispute would now be decided by Muslim law, as the Act directs, and not by any English rule.

Nandkumar: the trial was criminal, and the Act's personal-law provisions do not make forgery non-criminal. What the Act does is protect acts done under the rule and law of caste, and give the Court power to adapt its process. A capital trial of a Brahmin on an English statute would still have been possible, and that is the limit of what 1781 achieved.

Cossijurah: the Government could not now be sued for public acts, and the Zamindar, if the suit were revenue-related, would be outside the Court altogether. The crisis could not recur in the same form.

Distinctions worth having straight

What beginners get wrong

"The Settlement Act abolished the Supreme Court." It did not. The Court continued, with reduced jurisdiction, and Cowell records that it afterwards won greater authority and respect than any earlier tribunal in India.

"It settled the boundary between the two systems." It did not, and the next chapter is about what it left unsettled. It removed the largest sources of friction without ever saying what the relation between the two systems was.

"The £5,000 appeal went to the Privy Council." It went to His Majesty in Council. The Judicial Committee of the Privy Council was created in 1833, and Module II follows that.

"The indemnity means Parliament approved what the Council did." The Act says the opposite in the same breath: it indemnifies because "many things have been done not justifiable by the strict rule of the law". An indemnity is granted for acts that were unlawful; if they had been lawful none would be needed.

Limits and criticism

Two criticisms, and the second is the more important.

It was a settlement in favour of the Company, and it is fair to say so. The Government was made unsuable for public acts, the revenue was removed from independent scrutiny, the Company's own courts and judges were protected, and the Company's officers were indemnified for having disobeyed a court. Every contested point was resolved in the Company's favour, and the substitute remedies were remedies within the Company's own system.

And it repeated the Regulating Act's central failure. Cowell's verdict is exact and worth quoting in substance: in the Act of 1781, as in that of 1773, there is no plain statement of the relation in which the Indian territories stood to the British Crown, nor whether any Indian natives were to be comprehended under the term "subjects", nor whether the provincial courts were to have a concurrent jurisdiction with the Supreme Court or an exclusive one, nor, if the latter, what its limits were.

So the great questions were left open a second time. What 1781 achieved was the removal of the occasions of conflict, not the resolution of it, and the two systems went on side by side for another eighty years until the Indian High Courts Act 1861 merged them. That is Module II.

Quick revision

• 21 Geo. III c. 70, the Act of Settlement, 1781.
• Governor-General and Council exempt for acts in their public capacity.
• Revenue excluded from the Supreme Court; s.22 gives the Council power to punish offences, abuses and extortions in collection, short of death, maiming or perpetual imprisonment.
• No action in the Supreme Court against a judicial officer of a country court for his judgments or orders, nor against a person acting in pursuance of them.
• Hindu and Muslim law in inheritance and succession and in contract and dealing; where the parties differ, the defendant's law. Acts under the rule and law of caste not to be crimes though not justifiable by English law.
• s.21: the Governor-General and Council recognised as the chief appellate court; the Sadar Diwani Adalat a court of record; final except on appeal to His Majesty in civil suits of £5,000 and upwards (and see s.71).
• s.23: power to frame regulations for the provincial courts without registration in the Supreme Court; the Crown may disallow within two years.
• Indemnity for resistance to the Court's process from 1 January 1779 to 1 January 1780, the Act reciting that many things had been done not justifiable by the strict rule of the law.

Test yourself

1. Name four things the Settlement Act took out of the Supreme Court's reach. Acts of the Governor-General and Council done in their public capacity; matters concerning the revenue and the officers employed in its collection; actions against judicial officers of the country courts in respect of their judgments and orders; and, by prescribing Hindu and Muslim law, the application of English law to inheritance, succession and contract between Indians.

2. State the choice-of-law rule the Act laid down. That in matters of inheritance and succession and of contract and dealing between party and party, Muslims were to be governed by Muslim law and Hindus by Hindu law; and where only one of the parties was a Muslim or a Hindu, by the laws and usages of the defendant.

3. What did section 21 do for the Sadar Diwani Adalat? It recognised the Governor-General and Council, or a committee of them, as determining appeals from the country and provincial courts, declared that body a court of record, and made its judgments final and conclusive except on appeal to His Majesty in civil suits of £5,000 and upwards.

4. Why did section 23 matter so much in practice? Because under section 36 of the Regulating Act a regulation was void until registered in the Supreme Court, and the Regulations of 1780 had never been registered. Section 23 allowed the Governor-General in Council to frame regulations for the provincial courts without reference to the Supreme Court, subject only to disallowance by the Crown within two years.

5. What does the indemnity clause tell you about Parliament's view of the Council's conduct? That it was unlawful. The Act indemnifies precisely because, in its own words, many things had been done that were not justifiable by the strict rule of the law; an indemnity is unnecessary for lawful acts.

6. What did the Act fail to settle? The same questions the Regulating Act had left open: the relation of the Indian territories to the Crown, whether Indians were comprehended in the word "subjects", and whether the provincial courts had a jurisdiction concurrent with the Supreme Court's or exclusive of it, and if exclusive, within what limits.

The Sadar Diwani Adalat itself was finally established by Act of Parliament in 1781, being constituted a court of record by 21 Geo. III c. 70, section 71. It had not been established by royal charter, so it remained one of the Company's courts, but it was thereafter distinguished from the ordinary Company courts because it traced its establishment to the recognition and sanction of Parliament.

What was left standing: the dual system

After 1781 India had two complete systems of courts in the same territory, and it is worth setting them out side by side because Module II is the story of how they were merged.

Two systems, two laws, two appellate ladders, and no rule saying which prevailed where they met. That is the dual judicial system, and MU's Module II names it in its first topic.

The struggle that started immediately

Do not imagine that separating revenue from justice ended the quarrelling. It moved it.

Within a few months of the separation of functions in 1780, the Governor-General recorded in a minute that "the institution of the new Courts of Dewanny Adawlut has already given occasion to very troublesome and alarming competition between them and the provincial Councils".

The rival claims of the revenue authorities and the judicial officers to exercise jurisdiction were destined, in Cowell's phrase, to a long antagonism and to varying success. It is a smaller conflict than the civil war between the Supreme Court and the Supreme Council, and it lasted much longer: the jurisdictions were united again by Cornwallis in 1787, separated again in 1793, united a third time in 1831, and the question was still being fought over in 1859. The next four chapters are the first two rounds of it.

A worked example

A dispute in 1785 between a zamindar of Burdwan and his tenant about rent.

• Which court? Rent is a revenue matter, reserved to the Provincial Council or the Collector. Not the Diwani Adalat, and certainly not the Supreme Court, which lost revenue matters in 1781.
• Change it to a dispute about the inheritance of the zamindari. Now it is the Diwani Adalat of the district, applying Hindu law if the parties are Hindus, with appeal to the Sadar Diwani Adalat.
• Change it again: the zamindar sues an English indigo planter living in Calcutta for trespass. Now the defendant is a British subject in a Presidency Town, and the Supreme Court has jurisdiction, applying English law to a trespass.
• And if the planter counterclaims for a debt against the zamindar? He must establish that the zamindar is within section 14, and if the zamindar pleads to the jurisdiction, the plea will ordinarily be sustained.

One district, one pair of litigants, and the forum and the law both change with the subject matter and the identity of the parties. A student who can work that example can answer almost anything set on the dual system.

What beginners get wrong

"After 1781 there was peace." Between the Supreme Court and the Council, largely yes. Between the civil courts and the revenue authorities, the fight had only just begun, and it ran for eighty years.

"The Sadar Diwani Adalat was a royal court after 1781." It was not established by royal charter and remained a Company court. What Parliament did was recognise it and constitute it a court of record.

"Impey was dismissed for taking the Sadar Diwani Adalat office." He was impeached and acquitted. The Directors ordered the arrangement to be undone in 1782 and the Governor-General in Council resumed the superintendence of the Court.

"The dual system meant Indians had no access to the Supreme Court." They had access where the Court had jurisdiction, which after 1781 mainly meant residents of Calcutta and persons who submitted to it. What they did not have was any choice of law: the Act of 1781 told the Court to apply their own law in the matters it named.

Limits and criticism

The settlement of 1781 is usually described as a success, and by the standard of stopping a constitutional crisis it was. Judged by any other standard it postponed the problem for eighty years.

A country with two systems of courts, two systems of law, and no rule of priority between them will produce conflicting decisions about the same land, the same debt and the same family, and it did. That is the subject of the first chapters of Module II, and it is why the Law Commissioners eventually recommended amalgamation and Parliament carried it out in 1861.

The deeper point is the one Cowell makes about both Acts. Parliament twice legislated about courts in India without saying what the relation of the Indian territories to the Crown was, or who among the inhabitants were subjects. Institutions can be built on a silence like that, but they cannot be reconciled to each other, because the question of which prevails is the question that was never answered.

Quick revision

• 1780: the six Provincial Councils confined to revenue; eighteen district Diwani Adalats created, independent of them, for inheritance, real property, mercantile and personal property disputes; revenue and rent reserved to the Councils and later the Collectors; appeal to the Sadar Diwani Adalat.
• The Regulations for those courts were drawn by Sir Elijah Impey; the Chief Justice was made Judge of the Sadar Diwani Adalat in 1780, holding the office and salary at the Council's pleasure; the Directors ordered it undone in 1782.
• 1781: the Sadar Diwani Adalat constituted a court of record by 21 Geo. III c. 70, s.71.
• What remained: the dual judicial system, King's courts and English law in the Presidency Towns, Company courts and Hindu, Muslim and Regulation law in the mofussil, with separate appeals.
• The new quarrel: civil courts against revenue authorities, beginning within months and lasting to 1859.

Test yourself

1. What courts did the reorganisation of 1780 create, and how many? Eighteen district Courts of Diwani Adalat, independent of the six Provincial Councils, with jurisdiction over inheritance to zamindaries and talukdaries and other real property, mercantile disputes and personal property, revenue and rent being reserved to the Councils. The ultimate appeal lay to the Sadar Diwani Adalat.

2. What office did Sir Elijah Impey accept in 1780, and on what terms? Judge of the Sadar Diwani Adalat, vested with all its powers, the Governor-General and Council ceasing to belong to it, but with the express stipulation that he should hold the office and its salary at their pleasure. He drew up the regulations for the civil courts, which were incorporated in the revised Code of 1781. The Directors ordered the arrangement undone in 1782.

3. Describe the dual judicial system in four points. Two sets of courts in the same territory: King's courts created by charter in the Presidency Towns with English judges applying English law, and Company courts in the mofussil staffed by the Company's servants applying Hindu and Muslim law and the Regulations; separate appellate ladders, to the King in Council and to His Majesty above £5,000 respectively; and no rule of priority where the two met.

4. What new conflict began in 1780, and how long did it last? The competition between the new civil courts and the revenue authorities, which the Governor-General noticed within months of the separation. It ran through the reunion of the jurisdictions by Cornwallis in 1787, the second separation in 1793, the third reunion in 1831, and was still alive when Act X of 1859 was passed.

It resumed the criminal side. Cornwallis resolved in Council to resume the superintendence of the administration of criminal justice throughout the provinces, and after a few years removed the Sadar Nizamat Adalat to Calcutta, from Murshidabad where Warren Hastings had transferred it.

And a revised code was published in the same year, adapted to the change of system.

Why he did it

The reason given at the time is the one to state, because it is an argument about the people rather than about administrative tidiness: the object of reverting to the system that had been discontinued in 1780 was to accustom the people to look to one master.

Behind that is a practical judgment. After seven years' experience it was considered impossible to draw a line between the revenue and the judicial departments in such a way as to prevent their clashing. The regulations of 1780 had tried, and constant confusion had been the result. Every case that touched land touched revenue, and a rule that sent revenue one way and property the other produced two courts fighting over the same dispute.

Notice also what Cornwallis was doing in terms of this book's story: he was reviving the institutions of Warren Hastings's plan of 1772, before the changes made by the Council of 1775 and the separation of 1780. Cowell says so in terms. Cornwallis's policy in 1787 was to carry out Hastings's original intentions.

The one safeguard he kept

Although the functions of civil justice and of revenue collection were re-united in the person of the Collector, the courts over which he presided were kept distinct.

That is a real distinction and a student should notice it. The same man sat as judge of the Diwani Adalat and as judge of the Mal Adalat, but they were two courts with two jurisdictions, two records and two appellate routes: the Diwani Adalat to the Sadar Diwani Adalat, the Mal Adalat to the Board of Revenue. It is the difference between fusing two offices and fusing two courts, and Cornwallis fused only the first.

Whether that safeguard was worth anything is exactly what he decided six years later that it was not.

A worked example

Ramnath, a zamindar of a Bengal district, has three grievances in 1789. Follow each.

One. The Collector has assessed his revenue too high. That is a revenue case: Mal Adalat, before the Collector. Appeal to the Board of Revenue, then to the Governor-General in Council in the revenue department. Notice that the officer who made the assessment is the judge of the complaint about it.

Two. His brother claims a share of the zamindari by inheritance. That is a civil case: Diwani Adalat, before the same man in his other capacity, applying Hindu law. Appeal to the Sadar Diwani Adalat.

Three. His tenant has been beaten by the Collector's peons. Criminal: the Faujdari Adalat, under the criminal system Cornwallis had just resumed supervising, with the Sadar Nizamat Adalat above it.

Ramnath's first grievance is decided by the person he is complaining about. That is the objection Cornwallis himself would state, in his own words, in 1793.

Distinctions worth having straight

What beginners get wrong

"Cornwallis separated the judiciary from the executive." He did, in 1793. In 1787 he did the exact opposite, and a student who gives the 1793 answer to a question about 1787 has the sequence backwards. The right sentence is: Cornwallis united the two functions in 1787 and separated them in 1793, having found by experience that union did not work.

"The 1787 plan was Cornwallis's own idea." It was resolved in obedience to the Court of Directors, and its policy was to revive Warren Hastings's scheme of 1772.

"All the district courts were given to the Collectors." All except those in the cities of Patna, Murshidabad and Dacca.

"The Mal Adalat was part of the Diwani Adalat." Two distinct courts, with distinct jurisdictions and distinct appeals, presided over by the same officer.

Limits and criticism

The plan is defensible on its own premises and it failed for the reason its critics predicted.

It is defensible because the alternative had produced "very troublesome and alarming competition" between the civil courts and the Provincial Councils within months of 1780, and because the Directors' instruction to make the people look to one master answered a genuine complaint: a cultivator who had to know which of two English courts to approach, on a distinction between rent and property that he had never heard of, was worse off than one who went to the Collector.

It failed because the Collector's two roles were not merely different but opposed. The revenue officer's duty is to collect the maximum lawfully due; the judge's duty in a suit about that collection is to decide impartially between the government and the subject. One man cannot discharge both, and Cornwallis said so himself in 1793 in the words the next chapters quote: it is necessary to arm revenue officers with power to enforce their demands, but to prevent the abuse of that power there should be courts of justice ready to punish oppression and exaction.

Six years was how long it took to find that out, and the finding is the whole significance of the plan of 1787.

Quick revision

• Cornwallis arrived as Governor-General in 1786.
• Pitt's India Act 1784 (24 Geo. III c. 25) had directed inquiry into grievances; the Directors' instruction was to establish permanent rules for revenue and for "the administration of justice founded on the ancient laws and local usages of the country".
• 1787: the office of judge of the mofussil courts to be held by the officer in charge of the revenue, except at Patna, Murshidabad and Dacca. The Diwani Adalats put under the Collectors.
• Revenue cases to the Collector as a Mal Adalat; appeal to the Board of Revenue, then the Governor-General in Council.
• Criminal justice: superintendence resumed, and the Sadar Nizamat Adalat afterwards moved to Calcutta.
• Object: that the people should look to one master. Policy: to revive Hastings's plan of 1772.
• The one safeguard: the two courts were kept distinct, though the judge was the same man.

Test yourself

1. What did the plan of 1787 do, in one sentence? It re-united civil justice with revenue collection by making the Collector the judge of the district civil court as well as of a new revenue court, the Mal Adalat, in every district except Patna, Murshidabad and Dacca.

2. What was the stated object, and what was the practical reason? The stated object was that the people should look to one master. The practical reason was that after seven years' experience it was thought impossible to draw a line between revenue and judicial business without constant clashing, and the separation of 1780 had produced exactly that.

3. What was Cornwallis instructed by Parliament and the Directors to achieve? Permanent rules for the settlement and collection of the revenue, and for the administration of justice founded on the ancient laws and local usages of the country.

4. Name the safeguard Cornwallis retained in 1787 and say why it was not enough. He kept the Diwani Adalat and the Mal Adalat distinct as courts, with separate jurisdictions and appeals, though the same officer presided over both. It was not enough because the two roles are opposed: the officer who must enforce a revenue demand cannot impartially decide a complaint about that demand.

5. Why is it a serious mistake to say Cornwallis separated the executive from the judiciary in 1787? Because he united them in 1787 and separated them in 1793. Getting the order wrong turns the entire point of topic 1.4, which is that Cornwallis tried both arrangements and rejected the first on experience, into its opposite.

In 1781 the faujdars and thanadars were abolished, and the judges of the civil courts were made magistrates, with power to apprehend offenders and bring them to trial, forwarding them to the daroga of the nearest criminal court, the power of punishment still resting with the Nawab's courts. Later the civil judges were given power to decide slight offences and, under restrictions, to inflict corporal punishment and impose fines.

So by 1790 criminal justice had an English magistracy at the bottom, Muslim courts in the middle, and a Nawab's officer at the top, and nobody thought it worked.

What Cornwallis decided, and the sentence he decided it in

Cornwallis's reason is recorded in a single sentence and it is the one to quote: the future control of so important a branch of government "ought not to be left to the sole discretion of any native, or indeed of any single person whomsoever."

Read both halves. The first half is a judgment about Indians holding high office, and a student should describe it as what it is rather than soften it. The second half is a general proposition about power that no lawyer would quarrel with: the control of criminal justice should not rest with any single person at all.

What the regulations of 3 December 1790 did

They created Courts of Circuit. Courts of Circuit were established under the superintendence of English judges, assisted by Indians versed in Muslim law, to try in the first instance persons charged with crimes or misdemeanours. A circuit court is one whose judges travel from station to station to try the cases that have accumulated there, and its business includes gaol delivery, the clearing of the gaol by trying everybody held in it.

They brought the Nizamat Adalat back to Calcutta, and enabled the Governor-General and the members of the Supreme Council to sit in it and superintend the administration of criminal justice throughout the provinces.

They transferred the Nazim's powers. The powers of the Nawab Nazim passed to the Governor-General in Council. That is the constitutional heart of the plan: the last substantial function that the dual government of 1765 had left with the Nawab was taken away, and the fiction that the Company governed only the Diwani ended.

The regulations of 1790 were, with amendments and alterations, re-enacted in 1793, and it is in that form that they became part of the Cornwallis Code. That is why some books date the criminal reforms to 1790 and others to 1793: both are right, and an answer that says the 1790 regulations were re-enacted in 1793 is right in a way that satisfies either question.

What the Courts of Circuit looked like in practice

There were four to begin with, increased as provinces were added. Each was composed of the same judges who sat in the provincial Civil Court of Appeal, together with the kazi and mufti attached to that court.

The circuit duties, including gaol deliveries at the principal stations, were ordinarily performed by the second, third and fourth judges in regular succession, the first judge remaining at the principal station unless otherwise directed.

They lasted until 1829, when Regulation I of that year abolished them because they had failed to give prompt justice, and Bengal was divided into twenty divisions under Commissioners of Revenue and Circuit who took over their powers along with those of the Board of Revenue.

A worked example

A dacoity is committed in a Bengal district in 1792.

1. The magistrate, who is the judge of the civil court of the district under the arrangement of 1781, apprehends the accused and commits him.
2. The case is tried in the first instance by the Court of Circuit, presided over by English judges of the provincial Court of Appeal, assisted by the kazi and mufti, applying Muslim criminal law.
3. A capital sentence goes for confirmation to the Sadar Nizamat Adalat at Calcutta, now composed of the Governor-General and the members of the Supreme Council.
4. Before 1790, step two would have been a Faujdari Adalat under Muslim officers and step three would have been at Murshidabad under the Nawab's superintendence.

Two changes, and both are about who controls, not about what law is applied. The law tried remained Muslim criminal law, with reforms, until the Indian Penal Code was brought into force in 1862.

Distinctions worth having straight

What beginners get wrong

"Cornwallis abolished Muslim criminal law in 1790." He did not. He took the control of criminal justice from the Nawab and gave the trials to English judges; the substantive law tried remained Muslim criminal law, reformed in stages over the following decades and replaced only by the Indian Penal Code.

"The Courts of Circuit were appellate courts." They tried cases in the first instance, on circuit, including gaol delivery. The appellate and confirming body was the Sadar Nizamat Adalat.

"The Sadar Nizamat Adalat was always at Calcutta." It was at Murshidabad from 1772, came to Calcutta on the abolition of the Committee of Revenue, went back to Murshidabad in 1775, and returned to Calcutta in 1790. Three moves, and the last one is Cornwallis's.

"1790 was about the police." The police was the background, and the plan is about courts. The police reform of this era is the network of thanadars and darogas that came with the Regulations of 1793.

Limits and criticism

The plan of 1790 is the most defensible of Cornwallis's three, and the criticism of it is a criticism of its premise rather than of its machinery.

Its machinery worked well enough to last thirty-nine years, and when the Courts of Circuit were abolished in 1829 the reason given was delay, not injustice.

Its premise was that criminal justice could not safely be left to an Indian officer. That premise is stated in the regulation itself, in the words quoted above, and it had a consequence that shaped the whole later system: from 1790 the trial of serious crime in the mofussil was in English hands, and the Indian law officers were reduced to expounding the law to a judge who decided. The office of kazi was itself abolished in 1809.

An answer that quotes the sentence and then notes both halves of its effect, the removal of a single person's discretion and the exclusion of Indians from the criminal bench, is doing exactly what a history paper asks.

Quick revision

• Cornwallis, 1790: the control of criminal justice "ought not to be left to the sole discretion of any native, or indeed of any single person whomsoever."
• Regulations of 3 December 1790: Courts of Circuit under English judges with Indians versed in Muslim law, trying in the first instance; the Governor-General and members of the Supreme Council to sit in the Nizamat Adalat, removed again to Calcutta.
• The powers of the Nawab Nazim passed to the Governor-General in Council.
• Four Courts of Circuit at first, made up of the judges of the provincial Civil Court of Appeal with the kazi and mufti; abolished in 1829 and replaced by twenty Commissioners of Revenue and Circuit.
• The regulations of 1790 were re-enacted with amendments in 1793.
• Background: Faujdari Adalats from 1772; the Nizamat Adalat moved to Murshidabad in 1775 under Muhammad Reza Khan; civil judges made magistrates in 1781.

Test yourself

1. What did the regulations of 3 December 1790 establish? Courts of Circuit under the superintendence of English judges, assisted by Indians versed in Muslim law, to try persons charged with crimes and misdemeanours in the first instance; and they enabled the Governor-General and the members of the Supreme Council to sit in the Nizamat Adalat, again removed to Calcutta, and to superintend criminal justice throughout the provinces.

2. What constitutional change did the plan of 1790 make? The powers of the Nawab Nazim passed to the Governor-General in Council, ending the last substantial function left with the Nawab by the dual government of 1765.

3. Who sat in a Court of Circuit? The same judges who sat in the provincial Civil Court of Appeal, with the kazi and the mufti attached to it. The circuit duties, including gaol delivery, were ordinarily done by the second, third and fourth judges in succession.

4. Did Cornwallis change the criminal law itself in 1790? No. He changed who controlled and who tried. The substantive law remained Muslim criminal law, reformed in stages, and it was replaced only by the Indian Penal Code.

5. Why do some books date the criminal reforms to 1793 rather than 1790? Because the regulations of 1790 were re-enacted, with amendments and alterations, in 1793 as part of the Cornwallis Code. Both dates are correct and an answer should say so.

The practical objections. The Mal Adalats' proceedings were irregular, summary and often ex parte, and the Collectors had to suspend their judicial functions whenever those interfered with their financial duties.

What must follow. Government "must divest itself of the power of infringing in its executive capacity the rights and privileges which, as exercising the legislative authority, it has conferred on the landholders". The revenue officers must be deprived of their judicial powers; all disputed financial claims of the public must be subject to courts superintended by judges who are not only wholly uninterested in the result but bound to decide impartially between the public and the proprietors, and between proprietors and tenants; and the Collectors must be divested of the power of deciding on their own acts and rendered amenable for them to the courts, collecting the public dues subject to a personal prosecution for every exaction exceeding the amount they are authorised to demand and for every deviation from the regulations.

Cowell's verdict on that preamble is that it lays down a sound and reasonable policy founded on strict justice. It is also, on any view, a remarkable thing for a colonial government to have said about itself in 1793.

The structure the regulations built

Revenue. The Mal Adalats were abolished and all causes hitherto tried by revenue officers were transferred to the civil courts. The Collectors were confined to their executive functions, collecting the revenue as officers subordinate to the Board of Revenue, their duties being described in section 8 of Regulation II of 1793.

Civil courts. By the next regulation, Government divested itself, in the words of its own preamble, "of the power of interfering in the administration of the laws and regulations in the first instance, reserving only as a Court of Appeal or Review the decision of certain cases in the last resort", and lodged its judicial authority in courts of justice.

The structure had three tiers:

• Zillah and city courts of Diwani Adalat, one for each district, under a covenanted English judge. A zillah is a district.
• Four Provincial Courts of Appeal, established by Regulation V of 1793 for Bengal, Bihar and Orissa, to hear appeals from the zillah and city courts.
• The Sadar Diwani Adalat at the Presidency, established by Regulation VI of 1793, consisting of the Governor-General and the members of the Supreme Council, receiving appeals from the provincial courts and councils and from the Board of Revenue.

Criminal courts. The regulations of 1790 were re-enacted with amendments. The authority of the Nawab Nazim was abolished, and the Governor-General and Council formed the Sadar Nizamat Adalat with general control over the criminal courts, with the four Courts of Circuit below it.

The Code. The whole body of existing regulations was formed into a regular code, printed with translations into the country languages, and, by a requirement Parliament afterwards made statutory in 1797, the ground of every regulation was to be prefixed to it and the courts were bound to regulate their decisions by the rules the regulations contained.

The one thing that spoiled the design, and its cure in 1801

Look again at the top of the structure. The Sadar Diwani Adalat consisted of the Governor-General and the members of the Supreme Council, and so did the Sadar Nizamat Adalat.

So Cornwallis, having removed the executive from the district courts, left it sitting as the highest civil and the highest criminal court in the country. The separation was complete below and absent at the top.

That was cured eight years later. By Regulation II of 1801 the Nizamat Adalat and the Diwani Adalat, which until then had consisted of the Governor-General and the members of Council, were directed to be composed of a Chief Judge and puisne judges, and from that time both courts exercised their functions distinct from the legislative and executive authority of the State. In 1811 the composition was made a Chief Judge and as many puisne judges as the Governor-General in Council thought necessary.

A student who can date the real separation of the highest courts from the executive to 1801 rather than to 1793 is giving an answer very few will give.

A worked example

Ramnath, the zamindar of the earlier chapter, has the same three grievances in 1795.

One, the over-assessment. No longer a Mal Adalat, which has been abolished. He sues in the zillah Diwani Adalat, before a judge who has nothing to do with the revenue. If the Collector has exacted more than he was authorised to demand, the Collector is personally liable and may be prosecuted. Appeal to the Provincial Court of Appeal, then to the Sadar Diwani Adalat.

Two, his brother's inheritance claim. The same zillah Diwani Adalat, applying Hindu law, with the same appeals.

Three, the assault on his tenant. Committed by the magistrate, tried by the Court of Circuit, capital sentences confirmed by the Sadar Nizamat Adalat at Calcutta.

Compare that with the 1789 version in the chapter on the plan of 1787, where the officer complained of was the judge of the complaint. The whole reform is visible in the change to grievance one.

Distinctions worth having straight

What beginners get wrong

"Cornwallis separated the executive and the judiciary completely in 1793." He separated them at every level except the top. The Sadar Diwani Adalat and the Sadar Nizamat Adalat remained the Governor-General in Council until Regulation II of 1801.

"The Cornwallis Code was a code of law like the Indian Penal Code." It was a consolidation of the Regulations, printed with translations and with the reason for each prefixed. It is a code in the sense of an ordered collection, not a code in the sense of a systematic restatement of substantive law. That kind of code arrives after the Charter Act of 1833 and the Law Commission.

"The separation lasted." It did not. The jurisdictions were united a third time in 1831, and Act X of 1859, in Cowell's words, directly violates the principles laid down in the preamble to Regulation II of 1793. Constant attempts were successfully made in the interests of the executive to depart from the policy.

Limits and criticism

The plan of 1793 is the high point of this part of the syllabus and it deserves to be praised precisely, not vaguely.

Its principle is stated better in Regulation II of 1793 than in most modern constitutional documents: that a government must divest itself, in its executive capacity, of the power to infringe the rights it has conferred in its legislative capacity, and that its own officers must be answerable to courts they do not control. A student writing about the rule of law in Module III can cite it as the earliest clear statement of that idea by a government in India.

Its weaknesses are three. It left the two highest courts in the hands of the executive for eight years. Its judges were exclusively English covenanted servants, and the Indian judicial officers, the sadar ameens and munsifs, were confined to the lowest rungs. And it was extremely expensive and extremely slow, which is the practical complaint that drove the reunions of 1831 and 1859 and the criticism that the next chapter is about.

Quick revision

• Cornwallis's minute, 1793: revenue officers must be armed with power to enforce demands, "but to prevent the abuse of this power, there should be Courts of Justice ready to punish oppression and exaction."
• Regulation II of 1793: Mal Adalats abolished; all causes tried by revenue officers transferred to the civil courts; Collectors confined to executive functions under the Board of Revenue and made personally liable for exactions beyond what they were authorised to demand.
• Regulation V of 1793: four Provincial Courts of Appeal for Bengal, Bihar and Orissa, above the zillah and city Diwani Adalats.
• Regulation VI of 1793: the Sadar Diwani Adalat at the Presidency, consisting of the Governor-General and members of the Supreme Council.
• Criminal: the regulations of 1790 re-enacted; the Nawab Nazim's authority abolished; the Governor-General and Council formed the Sadar Nizamat Adalat, with Courts of Circuit below.
• The Code: all regulations formed into a printed code, translated, with the ground of each regulation prefixed; made a statutory requirement by Parliament in 1797.
• Regulation II of 1801: the two Sadar courts given a Chief Judge and puisne judges, and from then they were distinct from the legislative and executive authority of the State.

Test yourself

1. Quote the substance of Cornwallis's reason for the separation of 1793. That no class of men should be watched with greater jealousy than the officers entrusted with the collection of the revenue; that it is necessary to arm them with power to enforce their demands; and that to prevent the abuse of that power there should be courts of justice ready to punish oppression and exaction.

2. Give the objection of principle stated in the preamble to Regulation II of 1793. That if the regulations for assessing and collecting revenue are infringed, the revenue officers themselves must be the aggressors, and individuals wronged by them in one capacity can never hope to obtain redress from them in another. Therefore the revenue officers must be deprived of their judicial powers and made amenable to the courts.

3. Set out the three tiers of the civil courts under the 1793 system. Zillah and city Diwani Adalats in each district under a covenanted judge; four Provincial Courts of Appeal under Regulation V of 1793; and the Sadar Diwani Adalat at the Presidency under Regulation VI of 1793, then consisting of the Governor-General and the members of the Supreme Council.

4. What was left unseparated in 1793, and when was it cured? The two highest courts, the Sadar Diwani Adalat and the Sadar Nizamat Adalat, remained the Governor-General and the members of Council. Regulation II of 1801 directed both to consist of a Chief Judge and puisne judges, and from that time they exercised their functions distinct from the legislative and executive authority of the State.

5. In what sense was the Cornwallis Code a code? In the sense of an ordered and printed consolidation of the existing Regulations, translated into the country languages, with the ground of each regulation prefixed and the courts bound to decide according to it. It was not a systematic restatement of substantive law of the kind produced after 1833.

Multiplication of courts and of judges. More courts were created and the number of judges increased. The Sadar Diwani Adalat, reconstituted in 1801 with a Chief Judge and two judges, was enlarged again by Regulation XII of 1811 to a Chief Judge and as many puisne judges as the Governor-General in Council should think necessary, and the same happened on the criminal side.

Indian judicial officers. Because there were never enough covenanted English judges, and because they were expensive, Indian judicial officers were given work at the bottom of the structure. The register of a zillah court, the sadar ameen and the munsif were empowered to try suits of small value, and their jurisdiction was extended by stages over the following decades. A munsif is a judge of the lowest civil court; a sadar ameen was the next grade above. Those two words are still in use in Indian district judiciaries, and they enter the system here.

The separation completed at the top. By Regulation II of 1801 the Sadar Diwani Adalat and the Sadar Nizamat Adalat ceased to be the Governor-General and the members of Council and were given a Chief Judge and puisne judges, and from that time both courts exercised their functions distinct from the legislative and executive authority of the State. The requirement that their proceedings be kept in English was relaxed, and copies of their proceedings ceased to be required except on appeal to His Majesty in Council or on a reference to the Governor-General in Council.

The criticism that mattered

The standing complaint against the Cornwallis system, made from within the service almost as soon as it was made, was that it was too English for the country.

Its procedure was elaborate; its judges were foreigners who did not speak the languages of the litigants; its costs were high; its delays were long; and its exclusion of Indians from every office above the lowest meant that the men who understood the country had no share in deciding its disputes. A cultivator with a small claim had, in practice, no court at all: the zillah court was distant, slow and expensive, and the munsif's jurisdiction was tiny.

Set against that is what the system achieved, and a fair answer says both. For the first time there were courts in the districts that were not the revenue department, presided over by judges with no financial interest in the outcome, applying a printed code with the reason for each rule stated in it, with an appeal that ran to a court which by 1801 was itself independent of the government. That is a real achievement and nothing like it had existed in Bengal before.

A worked example

A cultivator in 1800 has a claim for forty rupees against a neighbour.

Where does he go? The zillah Diwani Adalat is the court of general jurisdiction. It sits at the district headquarters, perhaps forty miles away; its judge is an Englishman; its procedure is written; its costs will exceed the claim; and its list is years long.

What does he do? In practice, not sue. He takes the dispute to the village, to the caste, to arbitration, or he abandons it.

What is the remedy the system found? The munsif: an Indian judicial officer, sitting locally, with jurisdiction over small suits, cheap and quick. The whole later history of the Indian civil judiciary is the progressive enlargement of that office, and it begins in the years this topic covers.

Distinctions worth having straight

What beginners get wrong

"Sir John Shore introduced a new judicial plan." He did not. He administered the Cornwallis system, and the changes of this period are adjustments to it rather than a fourth plan. If a question asks for Shore's plan, the honest answer is that there was none, and to describe what actually happened instead.

"Indians were excluded from the judiciary until the British left." They were excluded from the higher offices for a long time, and admitted to the lower ones from this period onwards through the munsif and sadar ameen. The progressive enlargement of those offices, and eventually the admission of Indians to the higher grades, is a continuous story from here to the district judiciary of Module III.

"The system failed." It was too slow and too expensive, and it survived, with continual amendment, until the courts were reorganised after 1861. Failure is the wrong word for a structure that lasted seventy years and whose vocabulary, zillah judge, munsif, district judge, sessions, is still in use.

Limits and criticism, and the handover to Module II

The last thing to notice in Module I is what the Cornwallis system did not touch, because that is what Module II is about.

Everything in this chapter concerns the mofussil: the Company's courts, the Regulations, Hindu and Muslim law, the Sadar Adalats. Alongside it, unchanged, stood the Supreme Court at Calcutta, a King's court applying English law, with its own appeal to the King in Council, subject to none of these Regulations and bound by none of this Code.

Two systems, side by side, in the same provinces, for another sixty-eight years. The struggles between the civil and revenue courts that this chapter describes were internal to one of them. The struggle between the two systems is the subject of the next chapter, and its resolution is the Indian High Courts Act 1861.

Quick revision

• Sir John Shore succeeded Cornwallis as Governor-General in 1793 and administered his system without changing its principles.
• The practical defects that emerged: arrears, cost, delay, distance, and a procedure and a bench that were foreign to the litigants.
• Remedies: more courts and more judges; the extension of the jurisdiction of Indian judicial officers, the register, the sadar ameen and the munsif; and the reconstitution of the Sadar courts.
• Regulation II of 1801: the Sadar Diwani Adalat and the Sadar Nizamat Adalat given a Chief Judge and puisne judges, exercising their functions distinct from the legislative and executive authority of the State.
• Regulation XII of 1811: a Chief Judge and as many puisne judges as the Governor-General in Council thought necessary.
• Shore's own minute of the 1770s explains his caution: a judge who does his duty makes himself liable to prosecution, and scarcely any Indian transaction tried by English standards would admit of a justification.

Test yourself

1. What was Sir John Shore's judicial plan? There was none. He administered the system Cornwallis had established in 1793, and the changes of the period are adjustments to it: more courts, more judges, wider jurisdiction for Indian judicial officers, and the reconstitution of the Sadar courts by Regulation II of 1801.

2. Name the four practical defects that the working of the Cornwallis system exposed. Accumulating arrears in the zillah courts; high cost; long delay and distance for the litigant; and a procedure and a bench foreign to the people who used them, with Indians excluded from all but the lowest judicial offices.

3. What did Regulation II of 1801 do, and why does it complete the reform of 1793? It directed that the Sadar Diwani Adalat and the Sadar Nizamat Adalat, which until then consisted of the Governor-General and members of Council, should be composed of a Chief Judge and puisne judges, so that from that time both exercised their functions distinct from the legislative and executive authority of the State. It completes 1793 because Cornwallis had separated revenue from justice everywhere except at the top.

4. What is a munsif, and why does the office matter? The judge of the lowest civil court. It matters because it was through the munsif and the sadar ameen that Indians entered the judiciary at all, and because the progressive enlargement of that jurisdiction is the beginning of the district civil judiciary that exists today.

5. What did the whole Cornwallis system leave untouched, and why does that matter for the next module? The Supreme Court at Calcutta and the other King's courts in the Presidency Towns, which applied English law, were subject to none of the Regulations and had their own appeal to the King in Council. Two systems therefore continued side by side until the Indian High Courts Act 1861, and that is the subject of Module II.

Notice what it means for this chapter. Even in the mofussil, English law arrived through the back door, as the residual rule. The difference between the two systems was not that one was English and the other Indian; it was that in the Presidency Towns English law applied as of right and in the mofussil only where nothing else did.

Why the duality was not a design but an accident

Nobody planned this. Each half arrived for its own reasons and neither was fitted to the other.

The Crown's courts came from a statute of 1773 aimed at controlling the Company's servants, and were placed in the Presidency Towns because that is where those servants were. Their jurisdiction over Indians was incidental, contested and, in the mofussil, mostly denied.

The Company's courts came from a plan of 1772 aimed at administering the Diwani, and were placed in the districts because that is where the revenue was. Their business was the ordinary civil and criminal justice of twenty million people.

The Settlement Act of 1781 might have fitted the two together and did not. As Cowell records, that Act, like the Act of 1773, contained no plain statement of the relation in which the Indian territories stood to the Crown, nor whether Indians were comprehended in the word "subjects", nor whether the provincial courts were to have a jurisdiction concurrent with the Supreme Court or exclusive of it, nor, if exclusive, what its limits were.

Those three unanswered questions are the whole of topic 2.1. Learn them as the frame and the conflicts are easy to remember, because each is an instance of one of them.

Concurrent and exclusive jurisdiction

The distinction in the third of Cowell's questions is worth stating because it is the technical heart of the topic.

Two courts have concurrent jurisdiction over a matter when either may hear it and the plaintiff may choose. They have exclusive jurisdiction when only one of them may hear it and the other must decline.

If the Supreme Court and the Sadar Diwani Adalat had concurrent jurisdiction over a class of case, then the same dispute could be begun in either, and the two might decide it differently, with no way of reconciling them because neither was above the other and their appeals went to different destinations.

If one had exclusive jurisdiction, somebody had to say where the boundary ran, and no instrument did.

Nobody ever answered the question, which means that in practice the answer was fought out case by case for eighty years, and that is what the next chapter describes.

A worked example

Take one piece of land near Dacca in 1830, and two claimants: Mr Wilson, an English indigo planter resident in Calcutta, and Mahesh, a zamindar of the district.

Mahesh sues Wilson for trespass. Wilson is a British subject resident in a Presidency Town, so the Supreme Court has jurisdiction over him, and will apply English law to the trespass and to the title.

Wilson sues Mahesh for the same land. Mahesh is not the Company's servant and pleads to the jurisdiction. The plea succeeds, and Wilson must sue in the zillah Diwani Adalat, which will apply Hindu law to the succession question at the root of Mahesh's title and the Regulations to the procedure.

So the same dispute about the same field can be tried in two courts, by two bodies of law, with two results, depending on who sues first. Whichever way it goes, the loser may appeal, one to the King in Council and the other, if the value is high enough, to His Majesty in Council, by two separate routes.

That is not a hypothetical difficulty. It is the ordinary condition of litigation between Europeans and Indians in the mofussil for eighty years, and it is the reason the Law Commissioners eventually recommended that the two systems be amalgamated.

What beginners get wrong

"The dual system means civil courts and criminal courts." It means Crown courts and Company courts. Each of the two systems had both a civil and a criminal side.

"The Supreme Court was superior to the Sadar Diwani Adalat." Neither was superior to the other. They were separate hierarchies with separate appeals. That is precisely the problem.

"Indians could not use the Supreme Court." They could, where it had jurisdiction, and they did: Kashinath Babu, the plaintiff in the Cossijurah case, was an Indian creditor using the Supreme Court against an Indian debtor. What was contested was the reach of that jurisdiction, not the right of Indians to invoke it.

"The mofussil courts applied only Indian law." They applied Hindu law, Muslim law and the Regulations, and, where none of those covered the matter, justice, equity and good conscience, which in practice meant English law adapted to Indian circumstances.

Limits and criticism

It is easy to write about the dual system as though it were absurd, and it is worth being more careful.

It had a defensible logic at the start. The Presidency Towns were small, densely settled, commercially English places whose inhabitants had used English law since 1726; the mofussil was an agricultural country of Hindus and Muslims governed by their own law. Applying different systems to two such different societies is not obviously wrong, and it is what the Settlement Act's personal-law rule assumes.

What made it indefensible was not the difference but the absence of any rule about the boundary, and the absence of any court above both. A federation of legal systems can work if somebody can say which applies. Here nobody could, and there was no common appellate court in India until the Federal Court in 1937 and no unified appeal in England until the Judicial Committee, which is the subject of the second half of this module.

The remedy adopted in 1861 was not to draw the boundary but to abolish it, by making one court out of the two. That is the Indian High Courts Act, and it is why that Act is the centre of Module II.

Quick revision

• The dual judicial system: Crown courts in the Presidency Towns, Company courts in the mofussil, from 1774 to 1861.
• Different creators, judges, law, procedure, appeals, and legislative control.
• The residual rule in the Company's courts: justice, equity and good conscience, which came to mean English law so far as applicable.
• The three questions neither the Act of 1773 nor the Act of 1781 answered: the relation of the territories to the Crown; whether Indians were "subjects"; and whether the provincial courts' jurisdiction was concurrent with or exclusive of the Supreme Court's, and if exclusive, within what limits.
• The remedy of 1861: not to draw the boundary but to merge the two courts.

Test yourself

1. Define the dual judicial system. The coexistence from 1774 to 1861 of the Crown's courts in the Presidency Towns, created by charter and staffed by English barristers applying English law, and the Company's courts in the mofussil, created by Regulation and staffed by the Company's servants applying Hindu law, Muslim law and the Regulations, each with its own appellate hierarchy and neither subordinate to the other.

2. State the three questions that neither the Regulating Act nor the Settlement Act answered. The relation in which the Indian territories stood to the British Crown; whether any Indians were comprehended under the term "subjects"; and whether the provincial courts had a jurisdiction concurrent with the Supreme Court's or exclusive of it, and if exclusive, what its limits were.

3. What is the difference between concurrent and exclusive jurisdiction, and why did it matter here? Concurrent jurisdiction means either court may hear the matter and the plaintiff chooses; exclusive means only one may. It mattered because if the jurisdictions were concurrent the same dispute could be decided differently by two courts with no common superior, and if exclusive somebody had to fix the boundary and no instrument did.

4. What did "justice, equity and good conscience" mean in the Company's courts? The residual rule applied where neither Hindu nor Muslim law nor any Regulation governed the case. In practice it came to mean English law so far as applicable to Indian society and circumstances.

5. Why was the duality not itself the fault? Because applying different bodies of law to two very different societies is defensible, and the personal-law rule of 1781 assumes it. The fault was that no rule fixed the boundary between the two systems and no court in India stood above both.

The complaint of the people who used the courts

The contemporary papers Cowell prints put the objection better than any summary can, and two passages are worth knowing.

A summary of the Court's proceedings records that arrests were made repeatedly for the same cause and used to terrify; that a purchaser of a zamindari near Dacca was ruined by suits brought by paupers on claims prior to his purchase and was finally condemned in considerable damages for an ordinary act of authority in his station; that renters and hereditary zamindars were driven away or arrested at the time of the collections and their crops embezzled; that a talukdar was ruined by the expense of pleading to the jurisdiction though he prevailed; and that in an action in which Rs 400 was recovered, the costs exceeded Rs 1,600.

And a representation to the khalsa, the native exchequer, by the diwan for the zamindari of Burdwan, states the other half of it: "The inhabitants of the interior country of Bengal are totally unacquainted with the forms and customs of the English law, with the language and phrases of the English lawyers, and with the offices of sheriff and other officers who are all English. When compulsion is offered to any person in the Mofussil, they threaten with habeas corpus and damages, but what an habeas corpus is, what are damages, what warrants, what summonses, no one of them can tell."

A system in which a successful defendant is ruined by his own costs, and in which the parties cannot name the process being used against them, is not delivering justice however correct its individual decisions are. That objection survived every reform of the period and was still being made in 1861.

The other half of the complaint

To be fair to the Court, the same papers show what it was interfering with.

The Diwani Adalats enforced claims for rent and revenue by summary process. It was a custom in Bengal, said the Burdwan diwan in the same representation, that whenever farmers and holders of trusts failed to discharge their revenue, "severities" were exercised upon them to enforce payment. The Supreme Court's interference was, in Cowell's phrase, the interference of ill-instructed English philanthropy; but what it was interfering with was the power of local authorities to use severities for the extortion of revenue.

That is the fairest statement of the collision available, and a student who gives both halves is giving the answer the topic deserves. The Court did not understand the country. What it did not understand included practices that would not be defended by anybody today.

The remark that sums up the legal difficulty

Asked what the Provincial Chief and Council of Dacca were, the Supreme Court answered: "They are no corporation in the eye of the law. The Chief and Provincial Council of Dacca is an ideal body. A man might as well say he was commanded by the King of the Fairies as by the Provincial Council of Dacca, because the law knows no such body."

Strip the flippancy and the proposition is exact, and it is the legal heart of the whole conflict. The Company's administrative bodies had no legal personality, no charter, and no statute defining their powers. A court asked whether they might imprison, distrain or decide had nothing to look at. The Settlement Act of 1781 answered it for the future by recognising the provincial courts and protecting their officers; before 1781 there was nothing to answer it with.

The consequence: government by paralysis

The Governor-General in Council's own description of the state of things is the strongest evidence of how bad it became: "All criminal justice is at a stand and seems not likely to be resumed. How can a Judge perform any function of his office? How presume to execute a criminal convicted and sentenced to death by the established laws of the country?"

Whatever one thinks of the Council's conduct at Cossijurah, that sentence describes a real breakdown. Judges of the Company's courts stopped performing their functions because they could not tell which of their acts would be treated as lawful, and Shore's minute of the same period, quoted in an earlier chapter, gives the reason from inside: the more effectually a judge performed his duty, the more liable to prosecution he became.

A worked example

A Diwani Adalat in 1778 decrees possession of a village to Gopal against Hari. Follow what could then happen.

1. Hari brings an ejectment in the Supreme Court, alleging that the true owner is an English creditor to whom he had mortgaged the village, and so bringing the case within the Court's jurisdiction over British subjects.
2. The Supreme Court gives judgment for the English mortgagee, and the sheriff of Calcutta puts him in possession.
3. The Provincial Council appoints a sezawul, a revenue officer, to collect the produce of the village and account to it, on the footing that the Adalat's decree stands.
4. Gopal applies to the Adalat, which holds its decree good; the mortgagee applies to the Supreme Court, which treats the Council's action as interference with its process.
5. Nobody in India can decide which decree prevails.

That is not an exaggerated hypothetical: Cowell records precisely this pattern, and observes that lands of which the sheriff had given possession were put by the Provincial Council under a receiver, which was not only a denial of the Court's jurisdiction but an actual interference with its process.

What beginners get wrong

"The conflict was between Englishmen and Indians." It was between two English-created systems. Indians appear on both sides of it, as plaintiffs in the Supreme Court and as officers of the Company's courts.

"The conflict ended in 1781." The constitutional crisis ended in 1781. The rivalry of jurisdictions continued in a lower key until 1861, and it is because it continued that the amalgamation was eventually carried out.

"The Supreme Court was simply oppressive." Its interventions stopped real abuses, and Module I's chapters give the evidence from the Company's own papers. Its process was also ruinously expensive and unintelligible to the litigants. Both are true.

"The Company's courts were cheap and quick." Cheaper and simpler than the Supreme Court, yes. In the same period the zillah courts were accumulating arrears that would take years to clear, and their summary process in revenue matters was the very thing the Supreme Court was interfering with.

Limits and criticism

The deepest point about the conflict is that it was not soluble by litigation, and that is why a student should resist the temptation to decide who was right.

Every dispute described in this chapter is at bottom a dispute about which of two courts has authority. A court cannot decide that question about itself and expect the other to accept it. Neither could appeal to the other. The two appeals from India, from the Supreme Court to the King in Council and from the Sadar Diwani Adalat to His Majesty in Council, ran to the same place in London but by different routes and on different terms, and it was nobody's business there to reconcile the two systems.

So the conflict continued until Parliament abolished its cause. The Indian High Courts Act 1861 did not decide which system was right; it made one court that inherited both, and the question stopped mattering. That is the subject of the next two chapters.

Quick revision

• Four forms of collision: rival jurisdiction over the same property; the Court's process running into the mofussil; actions against the Company's judicial officers; and the cost and incomprehensibility of English process.
• The figures: a talukdar ruined by the expense of pleading to the jurisdiction though he prevailed; costs over Rs 1,600 to recover Rs 400.
• The Burdwan diwan's representation: the inhabitants "threaten with habeas corpus and damages, but what an habeas corpus is, what are damages, what warrants, what summonses, no one of them can tell."
• The Dacca dewan's case, 1777: an action for trespass and false imprisonment against the dewan of the criminal court, an ordered arrest, a broken gate, and the judge dangerously wounded.
• The legal heart: the Company's bodies were no corporation known to the law, so a court asked about their powers had nothing to look at.
• The Council's own admission: "All criminal justice is at a stand."
• The conflict was not soluble by litigation, because neither court could decide the question about itself, and 1861 abolished the cause instead.

Test yourself

1. Name the four forms the conflict took. Rival jurisdiction over the same persons and property; the Supreme Court's process, including habeas corpus and arrest, running into the mofussil; actions in the Supreme Court against the officers of the Company's courts for acts done in their judicial capacity; and the ruinous cost and unintelligibility of English process to Indian litigants.

2. Give two figures that show the cost objection. A talukdar was ruined by the expense of pleading to the jurisdiction although his plea succeeded; and in one action in which Rs 400 was recovered the costs exceeded Rs 1,600.

3. What did the Supreme Court mean by saying the Provincial Council of Dacca was "no corporation in the eye of the law"? That the Company's administrative bodies had no legal personality, no charter and no statute defining their powers, so a court asked whether they might imprison or distrain had nothing to look at. The Settlement Act of 1781 answered the point for the future by recognising the provincial courts and protecting their officers.

4. Why could the conflict not be settled by a decision of either court? Because the question was which of the two had authority, and a court cannot decide that question about itself in a way the other must accept. Neither could appeal to the other, and the two appeals to England ran by different routes on different terms.

5. State the fairest summary of the collision. That the Supreme Court did not understand the country and imposed a process that ruined even successful litigants, and that what it was interfering with included the use of severities to extort revenue. Both halves are supported by the contemporary papers.

Why the dates matter for Module II

Three consequences follow, and each is worth a sentence in an answer.

The dual system became complete only in 1823. Before that, the collision between Crown courts and Company courts was a Bengal phenomenon in its sharpest form. Madras and Bombay had their own Company courts, and their own Sadar Adalats, but their Crown courts were a Mayor's Court until 1798 and a Recorder's Court until 1801 and 1823.

Each Presidency developed its own practice. Three Supreme Courts created at three different dates, each with its own charter, its own rules of practice and its own relationship with its Sadar Adalat, produced three different bodies of practice. The Letters Patent of 1862 and 1865 had to be issued separately for each High Court for exactly that reason, and differences between the Calcutta, Madras and Bombay High Courts survive from it.

And it explains the shape of the Act of 1861. Section 1 of that Act authorises Her Majesty to erect a High Court at Fort William "and by like Letters Patent to erect and establish like High Courts at Madras and Bombay for those Presidencies respectively", at such time or times as may seem fit. Parliament legislated for three separate Presidencies with three separate histories, and gave the Crown power to deal with each in its own time.

A worked example

A merchant of Madras with a claim of 2,000 pagodas against an English trader there. Where does he sue?

In 1790: the Mayor's Court at Madras under the Charter of 1753, a court of a Mayor and nine Aldermen, merchants; appeal to the Governor in Council, and above 1,000 pagodas to the King in Council.

In 1799: the Recorder's Court, the same body with a Crown-appointed barrister as Recorder sitting in it.

In 1810: the Supreme Court of Madras, a bench of English barristers, with the same five jurisdictions as at Calcutta and an appeal to the King in Council.

In 1870: the High Court of Madras, which by then has absorbed both the Supreme Court and the Sadar Adalat.

Four courts, one town, eighty years. The last change is the one Module II is about.

What beginners get wrong

"The Supreme Court of 1774 was for the whole of India." It was for Bengal, established at Fort William. Madras waited until 1801 and Bombay until 1823.

"The Recorder's Courts were Company courts." They were the Mayors' Courts with a Crown-appointed barrister added as Recorder. They belong on the Crown side of the dual system.

"All three Supreme Courts had identical powers." They were on the same model, but each was constituted by its own charter at a different date, and their practice diverged. That is why the letters patent of the 1860s were issued separately for each High Court.

Limits and criticism

The half-century between 1774 and 1823 shows something about the whole period that is easy to miss: there was no policy.

A court was created at Calcutta because Parliament was angry about Bengal. Madras and Bombay were given a Recorder in 1798 because their Mayors' Courts were plainly inadequate and a full Supreme Court was thought too expensive. Madras got a Supreme Court three years later; Bombay waited twenty-two years more. No document explains the sequence and no principle is discoverable in it, other than that each change followed a particular local difficulty.

The consequence is the one that matters for the rest of this module. By 1823 India had six superior courts, three of the Crown and three of the Company, in three Presidencies, none of them subordinate to another, with two separate appellate routes to England. That is the arrangement the Law Commissioners called on Parliament to end, and the Act of 1861 ended it.

Quick revision

• The Charter of 1774 created a Supreme Court for Bengal alone, at Fort William.
• 1798: the Mayors' Courts at Madras and Bombay replaced by Recorder's Courts, the Mayor and Aldermen with a Crown-appointed barrister as Recorder.
• 1801: Supreme Court at Madras. 1823: Supreme Court at Bombay.
• Each on the Calcutta model: English barristers appointed by the Crown, five jurisdictions, King's Bench powers, appeal to the King in Council.
• By 1823 there were six superior courts, three Crown and three Company, in three Presidencies, none subordinate to another.
• Section 1 of the Act of 1861 authorises the Crown to erect the High Courts at the three Presidencies at such time or times as may seem fit, because their histories were separate.

Test yourself

1. When did each Presidency Town get a Supreme Court? Calcutta by the Charter of 1774, Madras in 1801, and Bombay in 1823.

2. What was a Recorder's Court, and when were they established? A court consisting of the Mayor and Aldermen with a Recorder who was a barrister appointed by the Crown, given jurisdiction of the kind the Supreme Court had at Calcutta. They replaced the Mayors' Courts at Madras and Bombay in 1798.

3. Why did Bengal get a Supreme Court first? Because the Regulating Act of 1773 was directed at the government of Bengal, which had acquired the territorial revenues, and section 13 authorised a court at Fort William only.

4. How many superior courts were there in India by 1823, and how were they related? Six: three Crown courts, the Supreme Courts of Calcutta, Madras and Bombay, and three Company courts, the Sadar Adalats of the three Presidencies. None was subordinate to any other, and there were two separate appellate routes to England.

5. Why does section 1 of the Act of 1861 allow the High Courts to be created at different times? Because the three Presidencies had separate histories, separate charters and separate practice, and Parliament left the Crown to deal with each in its own time by separate letters patent.

And there is a proviso: not less than one third of the judges, including the Chief Justice, must be barristers, and not less than one third must be members of the Covenanted Civil Service.

This section is the amalgamation in miniature, and it repays reading twice.

Class 1 is the Supreme Court's bench: English barristers. Class 2 is the Sadar Adalat's bench: the Company's covenanted servants who had served as zillah judges. The Act puts them on the same bench and requires a third of each, so that neither tradition can be excluded.

Classes 3 and 4 are the ones a student should notice. Class 3 admits Indian judicial officers, because Principal Sadar Ameen was an office Indians held. Class 4 admits pleaders, and a pleader of a Sadar Court was very often an Indian. The Act therefore opened the High Court bench to Indians, by two routes, in 1861. That is why topic 4.2.5 in Module IV, on the legal profession under the High Courts Act, belongs with this section.

Section 3: nobody was dismissed

Section 3 provides that the persons who at the time of the establishment of a High Court are judges of the Supreme Court and permanent judges of the Sadar Diwani Adalat or Sadar Adalat of the same Presidency shall become judges of the High Court without further appointment, and that the Chief Justice of the Supreme Court shall become the Chief Justice of the High Court.

So the merger was not an abolition of two benches and the appointment of a new one. The two existing benches were poured into one, and the senior of the two chief justices, the Supreme Court's, took the head of it.

Section 4: tenure

Section 4 provides that all the judges shall hold office during Her Majesty's pleasure, with liberty to resign to the Governor-General of India in Council or the Governor in Council of the Presidency.

"During Her Majesty's pleasure" means removable at will, and it is a much weaker tenure than English judges had enjoyed since 1701. A student writing about the independence of the judiciary in Module III should notice that Indian High Court judges did not have security of tenure in 1861, and should contrast article 217 of the Constitution.

Sections 5 to 7: precedence, salaries and acting appointments

Section 5 fixes rank and precedence. The Chief Justice ranks before the other judges of the same court; those judges who were transferred to it from the Supreme Court on its establishment rank before the judges not so transferred; and otherwise the judges rank according to the seniority of their appointments, unless their patents provide otherwise. The provision is a small monument to the merger: for a generation, a High Court bench carried its two ancestries in its own order of precedence.

Section 6 deals with salaries and pensions. A Chief Justice or judge transferred from the Supreme Court was to receive the like salary, retiring pension and advantage as he would have been entitled to for service in the Supreme Court had that court continued, his service in the High Court being reckoned as service in the Supreme Court. Except as aforesaid, it was lawful for the Secretary of State in Council of India to fix, and from time to time to alter, the salaries, allowances, furloughs, retiring pensions and, where necessary, expenses for equipment and voyage of the Chief Justices and judges; provided always that such alteration shall not affect the salary of any judge appointed prior to the date of it.

That proviso is worth noticing beside section 4. A judge held office during Her Majesty's pleasure, so he had no security of tenure; but his salary could not be cut by a later alteration. Article 125 and article 221 of the Constitution now protect both, and it is the tenure, not the salary, that 1861 left unprotected.

Section 7 is the acting-appointment provision, and it is worth a sentence because it is the ancestor of articles 223 and 224A of the Constitution. On a vacancy in the office of Chief Justice, or during his absence, the Governor-General in Council or the Governor in Council, as the case may be, shall appoint one of the judges of the same High Court to perform the duties of Chief Justice until Her Majesty has appointed somebody who has entered on the office, or until the Chief Justice returns. On a vacancy in the office of any other judge, during his absence, or where a judge is appointed to act as Chief Justice, it is lawful for the Governor-General in Council or the Governor in Council to appoint a person with the qualifications required for appointment to the High Court to act as a judge, and that person may sit and perform a judge's duties until Her Majesty appoints somebody who enters on the office, until the absent judge returns, or until the acting appointment is cancelled.

Notice the two verbs. For the Chief Justice's office the executive shall appoint an acting Chief Justice from among the judges of that court; for a puisne judge's it may appoint anybody who has the qualification. Article 223 keeps the first idea in the President's hands and drops the second.

Sections 8 to 12: the abolition and the inheritance

On the establishment of a High Court in a Presidency, the Supreme Court and the Sadar Diwani Adalat and Sadar Nizamat Adalat of that Presidency were abolished, and their jurisdiction and every power and authority vested in them was vested in the High Court (s.9).

Section 10 provided that, until the Crown otherwise provided, all jurisdiction then exercised by the Supreme Courts over inhabitants of parts of India not comprised within the local limits of the letters patent should be exercised by the High Courts.

Section 11 provided that all provisions of Acts of Parliament, Orders in Council, Charters and Acts of the Indian legislature applicable to the Supreme Courts or their judges should be taken to apply to the High Courts and their judges, so far as consistent with the Act and the letters patent, and subject to the legislative power of the Governor-General in Council.

Section 12 provided that the High Court should have jurisdiction over all proceedings pending in the abolished courts, which should be dealt with as if had in the High Court, save that they might be continued as nearly as circumstances permitted according to the practice of the abolished courts.

Put those four together and the design is clear. Nothing was lost. Every jurisdiction, every rule, every pending case and every judge of both systems passed into the new court, and the two bodies of practice were allowed to continue side by side within it until they merged. That is why the Indian High Courts have an original side and an appellate side to this day: the original side is the Supreme Court's inheritance, the appellate side is the Sadar Adalat's.

Sections 13, 14 and 15: how the court works

Section 13: subject to any laws or regulations made by the Governor-General in Council, a High Court may by its own Rules provide for the exercise, by one or more judges or by Division Courts of two or more judges, of the original and appellate jurisdiction vested in it, in such manner as appears convenient for the due administration of justice.

Section 14: the Chief Justice shall from time to time determine what judge shall sit alone and what judges, with or without him, shall constitute the several Division Courts.

Section 15: each High Court shall have superintendence over all courts subject to its appellate jurisdiction, shall have power to call for returns, to direct the transfer of any suit or appeal from any such court to any other of equal or superior jurisdiction, and to make and issue general rules for regulating the practice and proceedings of those courts.

Section 15 is the ancestor of article 227 of the Constitution, and section 14 is why the Chief Justice of an Indian High Court is called the master of the roster today. Both are worth naming in an answer.

Sections 16 to 19: expansion, revocation and definitions

Section 16 empowered Her Majesty, if she thought fit, by Letters Patent to erect and establish a High Court for any portion of the territories in India not included within the local jurisdiction of another High Court, with a Chief Justice and such judges, of the same qualifications, as she might appoint. That is the section under which the High Court of the North-Western Provinces at Allahabad was created.

Section 17 empowered Her Majesty, within three years after the establishment of any High Court, to revoke the whole or any part of the letters patent by which it was established and to grant such other powers and provisions as she thought fit, or without revocation to grant additional or supplementary powers. That is the section under which the Letters Patent of 1862 were replaced in 1865.

Section 18 empowered Her Majesty by Order in Council to transfer any territory or place from the jurisdiction of one High Court to another, and generally to alter the territorial limits. Note that sections 10 and 18 were repealed four years later by section 2 of the Indian High Courts Act 1865, and that section 3 of that Act gave the power of transfer to the Governor-General in Council instead of to Her Majesty in Council. A student who says the Act of 1861 governs the transfer of territory between High Courts is right for four years only.

Section 19 is the interpretation clause: the word "barrister" in the Act includes barristers of England or Ireland and members of the Faculty of Advocates in Scotland, and "Governor-General and Governor" includes the officer administering the government.

A worked example

Trace one appeal across the change.

1860, Bengal. A suit about a zamindari is decided by a zillah court. The appeal goes to the Sadar Diwani Adalat at Calcutta. If the value is £5,000 or more, a further appeal lies to Her Majesty in Council. A quite separate suit between two English merchants of Calcutta is tried by the Supreme Court on its original side, with an appeal to the Queen in Council.

1863, Bengal. The Sadar Diwani Adalat and the Supreme Court no longer exist. The zamindari appeal goes to the High Court at Fort William on its appellate side; the merchants' suit is tried by the same High Court on its original side; and the judges who hear them are, by section 3, the very same men who sat in the two abolished courts. Appeals go from both to Her Majesty in Council.

One court, two sides, the same judges, and the question that had been unanswerable since 1774, which court has authority, no longer arises.

Distinctions worth having straight

What beginners get wrong

"The Act of 1861 established the High Courts." It authorised Her Majesty to establish them by letters patent, and they were established by the Letters Patent of 1862. Same relationship as the Regulating Act and the Charter of 1774.

"The High Court replaced the Supreme Court." It replaced both the Supreme Court and the Sadar Adalats, and inherited the jurisdiction of both. Saying only the first misses the entire point of the Act.

"Only barristers could be High Court judges." Four classes were eligible, including persons who had held judicial office not inferior to Principal Sadar Ameen and pleaders of ten years' standing. Not less than one third had to be barristers and not less than one third members of the Covenanted Civil Service.

"High Court judges had security of tenure." They held office during Her Majesty's pleasure. Security of tenure for Indian judges comes much later, and article 217 of the Constitution is where a student should look for the contrast.

Limits and criticism

The Act deserves its reputation, and the criticisms of it are real.

What it achieved. It ended a conflict that eighty years of litigation and two Acts of Parliament had failed to resolve, and it did so by the only method that could work: removing the duality rather than adjudicating it. It put Indian judicial officers and Indian pleaders on the same bench as English barristers, by statute, in 1861. And it created the institution that is still, in each State, the highest court below the Supreme Court of India.

What it did not do. It did not give the judges security of tenure. It did not touch the courts below the High Court, which remained as the Regulations had left them, so the reform stopped at the top. It applied only to the three Presidencies, leaving the rest of India to section 16 and to the slow creation of further High Courts. And by preserving the practice of the abolished courts under section 12, it preserved the distinction between the original and appellate sides, which is a survival of the dual system inside a single court and is with Bombay, Calcutta and Madras still.

Quick revision

• 24 & 25 Vict. c. 104, 6 August 1861. Nineteen sections.
• s.1: Her Majesty may by Letters Patent erect High Courts at Fort William, Madras and Bombay, at such times as she thinks fit.
• s.2: Chief Justice and not more than fifteen judges, from four classes: barristers of 5 years; Covenanted Civil Service of 10 years who served 3 as zillah judges; holders of judicial office not inferior to Principal Sadar Ameen or judge of a Small Causes Court for 5 years; pleaders of a Sadar Court or High Court of 10 years. One third barristers, one third covenanted service.
• s.3: existing Supreme Court and Sadar Adalat judges become High Court judges; the Supreme Court's Chief Justice becomes Chief Justice.
• s.4: office held during Her Majesty's pleasure.
• s.5: precedence: Chief Justice first, then the judges transferred from the Supreme Court, then by seniority of appointment. s.6: transferred judges keep their Supreme Court salary and pension; otherwise the Secretary of State in Council fixes and alters them, but no alteration affects a judge appointed before it. s.7: acting appointments: the executive shall appoint one of the court's own judges to act as Chief Justice on a vacancy or absence, and may appoint a qualified person to act as a judge, until Her Majesty appoints or the absent judge returns.
• ss.9 to 12: the Supreme Courts and Sadar Adalats abolished; all their jurisdiction, all applicable law and all pending proceedings pass to the High Court, which may continue them under the old practice.
• s.13: exercise of jurisdiction by single judges and Division Courts, by the court's own rules. s.14: the Chief Justice decides who sits where.
• s.15: superintendence over all courts subject to its appellate jurisdiction, returns, transfer, and general rules. The ancestor of article 227.
• s.16: further High Courts elsewhere. s.17: letters patent revocable within three years. s.18: transfer of territory. s.19: "barrister" defined.

Test yourself

1. What did the Act of 1861 actually enact, and what created the High Courts? It empowered Her Majesty to erect and establish High Courts by Letters Patent under the Great Seal at Fort William, Madras and Bombay, at such times as she thought fit. The courts themselves were created by the Letters Patent issued under that power.

2. State the four classes from which High Court judges could be selected, and the two thirds rule. Barristers of at least five years' standing; members of the Covenanted Civil Service of at least ten years who had served three as zillah judges or with like powers; persons who had held judicial office not inferior to Principal Sadar Ameen or judge of a Small Causes Court for at least five years; and pleaders of a Sadar Court or High Court of at least ten years. Not less than one third of the judges, including the Chief Justice, had to be barristers, and not less than one third members of the Covenanted Civil Service.

3. What happened to the judges of the abolished courts? By section 3 the sitting judges of the Supreme Court and the permanent judges of the Sadar Adalat became judges of the High Court without further appointment, and the Chief Justice of the Supreme Court became Chief Justice of the High Court.

4. Why do Indian High Courts still have an original side and an appellate side? Because the Act merged a trial court, the Supreme Court, with an appellate court, the Sadar Adalat, and section 12 allowed pending proceedings to be continued according to the practice of the abolished courts. The two bodies of practice survived inside the single court.

5. Which section is the ancestor of article 227 of the Constitution, and what does it say? Section 15: each High Court shall have superintendence over all courts subject to its appellate jurisdiction, with power to call for returns, to direct the transfer of suits and appeals, and to make and issue general rules regulating their practice and proceedings.

Two changes at once. The power to move territory between High Courts passes from Her Majesty in Council in London to the Governor-General in Council in India, which is a real transfer of authority. And the second half is the mechanism by which a High Court's writ could run into the territory of a Princely State, over British Christian subjects living there, which is how the courts of British India reached into places British India did not govern.

Section 4 is the check on that power. Whenever such an order is passed, the Governor-General in Council must transmit an authentic copy to the Secretary of State for India, and Her Majesty may signify her disallowance through the Secretary of State in Council. The disallowance annuls the order from the day the Governor-General makes known by proclamation, or signifies to his Council, that he has received notification of it. There is then a saving: all acts, proceedings and judgments done, taken or given by the High Courts under the order, and not set aside by a competent authority before the disallowance was promulgated, are deemed valid and effectual notwithstanding the disallowance.

That saving is the sort of provision students skim and examiners like, because it answers an obvious question: what happens to the cases a High Court decided under a jurisdiction that is afterwards annulled? The answer is that they stand. Compare it with the pattern in sections 36 and 37 of the Regulating Act, where a disallowed regulation became null and void: here the instrument dies and its fruits survive.

Section 5 provides that so much of the Act as relates to the jurisdiction of the High Court shall commence and come into operation as soon as it has been published by the Governor-General in Council.

Section 6 provides that nothing in the Act shall interfere with the powers of the Governor-General in Council at meetings for the purpose of making laws and regulations, that is, in its legislative capacity.

The patents of 1865 are the ones in force, and it is from them that the phrase "letters patent appeal", the appeal from a single judge of a High Court to a Division Bench of the same court, takes its name. When a Bombay lawyer says "clause 15 of the Letters Patent", the reference is to the patents of 1865.

What the patents contained

Since the Act said only that the Crown might erect High Courts, everything that makes a High Court a court had to be in the patents. Each patent dealt with the same subjects:

• the constitution of the court, its Chief Justice and judges, and the taking of the oath;
• its original civil jurisdiction, over the Presidency Town, inherited from the Supreme Court;
• its appellate civil jurisdiction, over the courts of the mofussil, inherited from the Sadar Diwani Adalat;
• its ordinary and extraordinary original criminal jurisdiction, and its criminal appellate and revisional jurisdiction;
• the law to be applied, which continued the personal-law rule for Hindus and Muslims;
• the power to make rules of practice, and the constitution of Division Courts under section 13 of the Act;
• appeals from a single judge to a Division Bench, which is the letters patent appeal;
• and the appeal to Her Majesty in Council.

Three separate patents were issued for the three courts, because the three Presidencies had three different histories, and differences between the Calcutta, Madras and Bombay High Courts descend from them. Bombay, for example, has an original side today because the patents gave it one; a High Court created later, in a province with no Presidency Town, does not.

The four first High Courts

Calcutta, Madras and Bombay in 1862, under section 1.

Allahabad in 1866, for the North-Western Provinces, under section 16, which empowered Her Majesty to erect a High Court for any portion of the Indian territories not within the local jurisdiction of another High Court. The Government of India Act 1915 later provided expressly, in section 101(5), that the High Court for the North-Western Provinces might be styled the High Court of Judicature at Allahabad, and that the High Court at Fort William in Bengal is referred to in that Act as the High Court at Calcutta.

Section 18 of the Act of 1861 allowed Her Majesty by Order in Council to transfer territory from the jurisdiction of one High Court to another and generally to alter their territorial limits, which is how the map was adjusted as provinces were created and rearranged.

A worked example

A litigant in Bombay in 1870 loses before a single judge of the High Court on its original side. What can he do?

1. Appeal to a Division Bench of the same High Court, under the clause of the Letters Patent of 1865 that provides for it. That is the letters patent appeal, and it exists because a High Court's original side is a trial court and its judges sit alone.
2. If he loses there, appeal to Her Majesty in Council, subject to the conditions in the patent.
3. Notice that his first appeal is to the same court that tried him, differently constituted. That is a peculiarity of the Presidency High Courts, it comes from the patents, and it does not exist in a court that has no original side.

What beginners get wrong

"The High Courts were established by the Act of 1861." They were established by the Letters Patent of 1862 issued under it. The Act authorises; the patents create; and the patents of 1862 were themselves replaced in 1865.

"The Act of 1865 created new High Courts." It extended the time within which the Crown could revoke and re-grant the letters patent, and made further provision about territorial jurisdiction. It created no court.

"A letters patent appeal is an appeal to the Supreme Court." It is an appeal from a single judge of a High Court to a Division Bench of the same High Court, under the clause of the Letters Patent that provides for it.

"All High Courts have the same powers." The three Presidency High Courts have an original side that later High Courts do not, because their patents gave it to them and because they inherited it from the Supreme Courts.

Limits and criticism

The two-instrument method, an Act that empowers and letters patent that create, had one practical merit and one lasting cost.

The merit is flexibility. Parliament did not have to legislate again to adjust a court's jurisdiction; the Crown could revoke and re-grant, which is exactly what happened in 1865, and could transfer territory by Order in Council under section 18.

The cost is that the constitution of the most important courts in India rested on instruments that were not statutes, that differed between the three Presidencies, and that most litigants and many lawyers never read. The Government of India Act 1915 recognised the difficulty in section 106(1), which describes the High Courts as having such jurisdiction and powers "as are vested in them by letters patent", and then adds "and, subject to the provisions of any such letters patent, all such jurisdiction, powers and authority as are vested in those courts respectively at the commencement of this Act". A statute defining a court by reference to documents outside itself is not an ideal way to constitute a judiciary, and the Constitution of 1950 did not repeat it: articles 214 to 231 state the constitution of the High Courts in the Constitution itself.

Quick revision

• Letters Patent of 1862: established the High Courts at Calcutta, Madras and Bombay under s.1 of the Act of 1861.
• s.17 allowed revocation and re-grant within three years; the Indian High Courts Act 1865 (28 & 29 Vict. c. 15) extended the time; fresh Letters Patent were issued in 1865 and are the ones in force.
• The patents contain the constitution, the original and appellate civil jurisdiction, the criminal jurisdiction, the law to be applied, the rule-making power, the appeal from a single judge to a Division Bench, and the appeal to Her Majesty in Council.
• Allahabad, 1866, under s.16, for the North-Western Provinces; s.101(5) of the Act of 1915 authorised the style "High Court of Judicature at Allahabad".
• s.18: territory transferable between High Courts by Order in Council.
• "Letters patent appeal" takes its name from these instruments.

Test yourself

1. What is the relationship between the Act of 1861 and the Letters Patent? The Act empowered the Crown to erect High Courts by Letters Patent; the Letters Patent of 1862 actually established them; and under section 17, as extended by the Act of 1865, fresh Letters Patent were granted in 1865, which are the patents in force.

2. What did the Indian High Courts Act 1865 do? It extended the time within which fresh Letters Patent might be granted for the High Courts in India, and made further provision respecting their territorial jurisdiction. It created no court.

3. What is a letters patent appeal? An appeal from the decision of a single judge of a High Court to a Division Bench of the same High Court, provided for by a clause of the Letters Patent. It exists in the courts whose patents gave them an original side.

4. Under which section was the Allahabad High Court created, and why was a separate section needed? Section 16, which empowered Her Majesty to erect a High Court for any portion of the Indian territories not within the local jurisdiction of another High Court. Section 1 covered only Fort William, Madras and Bombay.

5. What is the drafting criticism of constituting the High Courts by letters patent? That the constitution and jurisdiction of the most important courts in India rested on instruments outside the statute, differing between the three Presidencies. Section 106(1) of the Act of 1915 had to define the High Courts by reference to those documents, and the Constitution of 1950 did not repeat the method: articles 214 to 231 state the constitution of the High Courts directly.

Compare the Act of 1861, which fixed the maximum at fifteen. The number has grown, and it goes on growing: the Indian High Courts Act 1911 had raised it, and article 216 of the Constitution abandons a fixed maximum altogether.

101(3): a judge must be one of four:

• a barrister of England or Ireland, or a member of the Faculty of Advocates in Scotland, of not less than five years' standing;
• a member of the Indian Civil Service of not less than ten years' standing, who has for at least three years served as, or exercised the powers of, a district judge;
• a person who has held judicial office not inferior to that of a subordinate judge or a judge of a small cause court for not less than five years;
• a person who has been a pleader of a high court for not less than ten years.

101(4): not less than one third of the judges, including the chief justice but excluding additional judges, must be barristers or advocates, and not less than one third members of the Indian Civil Service.

Set that beside section 2 of the Act of 1861 and the continuity is exact: the same four classes, the same two thirds rule, with "Covenanted Civil Service" become "Indian Civil Service", "zillah judge" become "district judge", and "Principal Sadar Ameen" become "subordinate judge". The vocabulary of the Company has been replaced by the vocabulary still used in Indian district courts.

101(5): the High Court for the North-Western Provinces may be styled the High Court of Judicature at Allahabad, and the High Court at Fort William in Bengal is referred to in the Act as the High Court at Calcutta.

Sections 102 to 105: tenure, precedence, salary, vacancies

102: every judge holds office during His Majesty's pleasure, and may resign, in the case of Calcutta to the Governor-General in Council and otherwise to the local Government.

103: the chief justice has rank and precedence before the other judges; the others rank according to the seniority of their appointments, unless their patents provide otherwise.

104: the Secretary of State in Council may fix and alter the salaries, allowances, furloughs, retiring pensions and equipment and voyage expenses of the judges, but an alteration shall not affect the salary of a judge appointed before it. The remuneration is to be "the whole profit or advantage which he shall enjoy from his office", which is a rule against a judge taking anything else from the position. The section also provides for payments to the representatives of a judge who dies on the voyage out or within six months of arrival, and of one who dies in office thereafter.

Section 104 is worth pausing on, because it contains, in 1915, two of the guarantees that Module III will discuss as marks of judicial independence: a salary that cannot be reduced during a judge's tenure, and a rule that the office yields nothing but the salary. Compare article 125 of the Constitution.

105: on a vacancy or absence in the office of chief justice, the Governor-General in Council for Calcutta and the local Government elsewhere shall appoint one of the other judges to perform his duties until His Majesty appoints; and on a vacancy or absence of any other judge, or where a judge is acting as chief justice, an acting judge with the same qualifications may be appointed, until His Majesty appoints, or the absent judge returns, or the appointment is cancelled.

Section 106: what a High Court is, and the revenue exclusion

106(1): the several High Courts are courts of record and have such jurisdiction, original and appellate, including admiralty jurisdiction in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers and power to make rules regulating the practice of the court, as are vested in them by letters patent; and, subject to those patents, all such jurisdiction, powers and authority as were vested in them at the commencement of the Act.

106(2): the High Courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

Section 106(2) is a hundred and thirty-four years old when it is enacted. It is the Settlement Act of 1781's exclusion of revenue from the Supreme Court, carried forward through the letters patent into a consolidating statute, and it is carried forward again into section 226 of the Government of India Act 1935. A student who can trace one rule from Cossijurah in 1780 to a section of a statute in 1935 is doing exactly what a history paper is for.

Section 107: superintendence

Each High Court has superintendence over all courts for the time being subject to its appellate jurisdiction, and may:

• call for returns;
• direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction;
• make and issue general rules and prescribe forms regulating the practice and proceedings of those courts;
• prescribe the forms of books, entries and accounts kept by their officers; and
• settle tables of fees allowed to the sheriff, attorneys, clerks and officers,

provided that such rules, forms and tables are not inconsistent with any Act in force and have the required previous approval.

That is section 15 of the Act of 1861 with two additional heads, and it is the direct ancestor of article 227 of the Constitution.

Sections 108 to 114: the remaining provisions

• 108: exercise of jurisdiction by single judges or division courts, as the court's own rules provide, which is section 13 of the Act of 1861.
• 109: power of the Governor-General in Council to alter the local limits of a High Court's jurisdiction.
• 112: the law to be administered in cases of inheritance and succession, which carries the personal-law rule forward.
• 113: power to establish additional High Courts, which is section 16 of the Act of 1861.
• 114: appointment and powers of the Advocate-General.

A worked example

An advocate is being considered for a High Court judgeship at Madras in 1920. Is he eligible, and what will his position be?

• Eligibility. He is a pleader of the High Court of ten years' standing, so he qualifies under section 101(3)(d). He is not a barrister and not in the Indian Civil Service, so his appointment must leave at least a third of the bench in each of those two categories.
• Appointment. By His Majesty, under section 101(2); or, if the appointment is temporary, by the Governor-General in Council as an additional judge for not more than two years under the first proviso, or as an acting judge under section 105.
• Tenure. During His Majesty's pleasure, section 102. He may resign to the local Government.
• Salary. Fixed by the Secretary of State in Council under section 104, and it cannot be reduced to his disadvantage after his appointment.
• What he may hear. Whatever the Letters Patent of 1865 give the Madras High Court, section 106(1), except an original revenue matter, section 106(2).

What beginners get wrong

"The Act of 1915 created the High Courts." It consolidated the law about them. They were and remained courts established by letters patent, and section 101(1) says so.

"It changed the qualifications for judges." It restated them. The four classes and the two thirds rule are those of section 2 of the Act of 1861, with the vocabulary updated.

"The maximum number of judges was fifteen." Fifteen was the Act of 1861. By 1915 it is twenty, including the chief justice and additional judges.

"High Courts could hear revenue cases." Not on their original side: section 106(2) forbids it, as the Settlement Act of 1781 had done. Revenue matters could reach them on appeal from the courts below.

Limits and criticism

Consolidation is a modest virtue and this Act has it. Its limitations are the limitations of what it consolidated.

The judges still held office during His Majesty's pleasure, which is the weakest tenure any of the instruments in this book confers, and it was not improved until the Government of India Act 1935 gave High Court judges a fixed retiring age and removal only on specified grounds.

The High Courts' jurisdiction still came from letters patent, so a statute that was meant to state the law had to define its most important institutions by reference to documents outside itself.

And the courts below the High Courts were still governed by the Regulations and the local Acts, unmentioned in Part IX except through the superintendence in section 107. India's judiciary was, in 1915, a statutory summit on an unconsolidated base.

Quick revision

• Government of India Act 1915 (5 & 6 Geo. V c. 61), a consolidating Act of 135 sections. Part IX, ss.101 to 114, is the High Courts.
• s.101: High Courts are those established by letters patent; a chief justice and such judges as His Majesty appoints; additional judges by the Governor-General in Council for up to two years; maximum twenty; four classes of eligible person; one third barristers, one third Indian Civil Service; Allahabad and Calcutta named.
• s.102: office held during His Majesty's pleasure. s.103: precedence by seniority.
• s.104: salaries fixed by the Secretary of State in Council, not alterable to the disadvantage of a sitting judge, and the remuneration is the whole profit of the office.
• s.105: acting chief justice and acting judges.
• s.106: courts of record, with the jurisdiction their letters patent give them, including admiralty for offences on the high seas; no original jurisdiction in revenue matters.
• s.107: superintendence over subordinate courts: returns, transfer, general rules and forms, books and accounts, tables of fees. The ancestor of article 227.
• ss.108, 109, 112, 113, 114: single judges and division courts; local limits; the law of inheritance and succession; additional High Courts; the Advocate-General.

Test yourself

1. What kind of Act was the Government of India Act 1915, and what did it change about the High Courts? A consolidating Act, which re-enacted the existing law in one statute without altering it. In principle it changed nothing about the High Courts; Part IX restates the law as it stood.

2. Who could be appointed a High Court judge under section 101(3), and what was the two thirds rule? A barrister of England or Ireland or an advocate of Scotland of five years' standing; a member of the Indian Civil Service of ten years' standing with three as a district judge or exercising like powers; a person who had held judicial office not inferior to a subordinate judge or judge of a small cause court for five years; or a pleader of a High Court of ten years' standing. Not less than one third of the judges, including the chief justice but excluding additional judges, had to be barristers or advocates, and not less than one third members of the Indian Civil Service.

3. State two provisions of section 104 that Module III will recognise as guarantees of judicial independence. That an alteration of salaries shall not affect the salary of a judge appointed before it, so a sitting judge's pay cannot be reduced; and that the remuneration fixed shall be the whole profit or advantage the judge enjoys from the office.

4. Trace section 106(2) backwards and forwards. Backwards to the Settlement Act of 1781, which excluded revenue matters from the Supreme Court after the Kamaluddin and Cossijurah disputes, and which reached the High Courts through the letters patent; forwards to section 226 of the Government of India Act 1935, which re-enacts the same exclusion.

5. What was the maximum number of judges of a High Court under the Act of 1861 and under the Act of 1915? Fifteen under the Act of 1861; twenty under section 101(2) of the Act of 1915, including the chief justice and additional judges.

Notice the change from 1915: no number in the statute. The maximum is fixed by Order in Council, court by court. Article 216 of the Constitution goes one step further and fixes no maximum at all.

220(2): every judge shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of sixty years.

This is the most important sentence in the chapter. Under the Act of 1861 and the Act of 1915 a High Court judge held office during His Majesty's pleasure, that is, removable at will. Under the Act of 1935 he holds office until sixty. A retiring age is the second of the classic guarantees of judicial independence, after an irreducible salary, and this is where it enters Indian law. Compare article 217 of the Constitution, which fixes the age at sixty-two and adds removal only by the process in article 124(4).

Section 221: the salary

The judges are entitled to such salaries, allowances, leave and pensions as His Majesty in Council may fix, provided that neither the salary of a judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

That is section 104 of the Act of 1915 restated, and it is article 125 of the Constitution in embryo.

Sections 222 to 223: continuity

222: if the office of chief justice becomes vacant or he is unable to act, the duties are performed by such other judge as the Governor-General in his discretion may appoint, until His Majesty appoints or the chief justice resumes.

223: subject to the Act, to any Order in Council and to any Act of the appropriate legislature, the jurisdiction of, and the law administered in, any existing High Court, and the powers of its judges in relation to the administration of justice, including the power to make rules of court and to regulate sittings and division courts, shall be the same as immediately before the commencement of Part III of this Act.

Section 223 is the hinge of continuity in this whole book. It carries the Letters Patent of 1865, and through them the jurisdiction of the Supreme Courts and the Sadar Adalats, into the constitutional statute of 1935; and article 225 of the Constitution carries the same thing forward again into independent India. A student who can say that the jurisdiction of the Bombay High Court today is preserved by article 225, which preserved what the Act of 1935 preserved, which preserved what the Letters Patent of 1865 gave, which was what the Act of 1861 merged out of the Supreme Court and the Sadar Adalat, has understood Module II.

Section 224: superintendence

224(1): every High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction, and may call for returns, direct transfers, make and issue general rules and prescribe forms for regulating their practice and proceedings, prescribe the forms of books, entries and accounts, and settle tables of fees.

This is section 107 of the Act of 1915, which was section 15 of the Act of 1861. Article 227 of the Constitution is drafted from this section, and when you study article 227 next year you will find the same list of powers.

Section 225: the constitutional case

Section 225 provides that if, on an application made in accordance with the section, a High Court is satisfied that a case pending in an inferior court is likely to involve the question of the validity of any Federal or Provincial Act, it shall transfer the case to itself for trial.

That provision exists because the Act of 1935 introduced, for the first time, a distribution of legislative powers under which a statute could be ultra vires, and a question of that kind was thought too important for a subordinate court. Nothing in Module I has a counterpart to it, because until 1935 no Indian legislature had limits a court could enforce in that way.

Section 226: revenue, again

226(1): until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

226(2): a Bill or amendment to make such provision shall not be introduced without the previous sanction of the Governor-General or the Governor in his discretion.

The rule is the Settlement Act of 1781's, unchanged in substance after a hundred and fifty-four years, and now with a lock on the door: even the legislature cannot alter it without the Governor's discretionary sanction. If you want one example of how long a rule can survive in this subject, this is it: Kamaluddin's habeas corpus in 1775, the Cossijurah crisis of 1780, the Act of 1781, the letters patent, section 106(2) of the Act of 1915, and section 226 of the Act of 1935.

Sections 227 to 231: the rest

• 227: all proceedings in every High Court shall be in the English language.
• 228: the administrative expenses of a High Court, including all salaries, allowances and pensions of its officers, servants and judges, shall be charged upon the revenues of the Province, and fees taken by the court form part of those revenues. Expenditure "charged" on the revenues is not submitted to the vote of the legislature, which is a financial guarantee of independence and is article 229(3) of the Constitution today.
• 229: His Majesty may, on an address from the Chambers of a Provincial Legislature presented to the Governor for submission to him, by letters patent constitute a High Court for that Province or part of it, reconstitute an existing one, or amalgamate two High Courts in one Province.
• 230: His Majesty in Council may, if satisfied that an agreement has been made between the Governments concerned, extend the jurisdiction of a High Court to any area in British India not forming part of its Province.
• 231: judges appointed before the commencement of Part III continue in office and are deemed appointed under the Act, but are not required to retire earlier than they would have done had the Act not been passed.

Section 231 is the ordinary saving that accompanies a new retiring age, and it tells you that the sixty-year rule of section 220(2) was genuinely new.

A worked example

A judge is appointed to the Bombay High Court in 1938. Compare his position with a judge appointed in 1918.

What beginners get wrong

"The Act of 1935 created the High Courts." It deemed the existing courts to be High Courts, provided for their constitution, and allowed the Crown to constitute, reconstitute and amalgamate them by letters patent under section 229. The courts themselves ran on from 1862.

"High Court judges got security of tenure in 1861." They held office during His Majesty's pleasure from 1861 to 1935. The retiring age of sixty in section 220(2) is the first real tenure they had.

"Section 224 is about appeals." It is about superintendence: returns, transfers, rules, forms, books and fees. It is administrative and supervisory control over the courts below, and it is the ancestor of article 227, not of article 226 or 136.

"The 1935 Act ended the revenue exclusion." It re-enacted it in section 226 and added a requirement of the Governor's discretionary sanction before any Bill to alter it could even be introduced.

Limits and criticism

The chapter is the high point of judicial independence in British India and it is worth being exact about how far it went.

What it gave. A retiring age instead of removability at pleasure; a salary and pension that could not be reduced; a court's expenses charged on the revenues instead of voted; and a superintendence over subordinate courts stated in the constitutional statute rather than in letters patent.

What it withheld. Appointment remained with His Majesty, on the advice of ministers in London, with no Indian participation of any kind. There was no procedure for removal at all in the chapter, which sounds like security and in fact meant that the terms of removal were whatever the warrant and the Order in Council provided. And the whole apparatus sat inside an Act whose central federal scheme never came into force, so the High Courts operated under a chapter of a constitution that had not been completed.

The Constitution of 1950 closed each of those gaps: appointment under article 217 with consultation, removal only under article 124(4), and a retiring age raised to sixty-two.

Quick revision

• Part IX chapter II, ss.219 to 231, of the Government of India Act 1935.
• s.219: the courts deemed High Courts: Calcutta, Madras, Bombay, Allahabad, Lahore, Patna, the Chief Court in Oudh, and the Judicial Commissioners' Courts in the Central Provinces and Berar, the North-West Frontier Province and Sind.
• s.220: court of record; chief justice and such judges as His Majesty appoints up to a maximum fixed by Order in Council; appointment by warrant under the Royal Sign Manual; office held until the age of sixty.
• s.221: salary, leave and pension not variable to his disadvantage after appointment.
• s.223: jurisdiction and law administered continue as before. The ancestor of article 225.
• s.224: superintendence over courts subject to its appellate jurisdiction. The ancestor of article 227.
• s.225: a case involving the validity of a Federal or Provincial Act is transferred to the High Court.
• s.226: no original jurisdiction in revenue matters, alterable only by an Act introduced with the Governor's discretionary sanction.
• s.227: proceedings in English. s.228: administrative expenses charged on the Province's revenues.
• s.229: His Majesty may constitute, reconstitute or amalgamate High Courts by letters patent, on an address from the Provincial Legislature. s.230: extension of jurisdiction to other areas. s.231: existing judges saved.

Test yourself

1. What is the single most important change section 220(2) made? It gave High Court judges a retiring age of sixty in place of tenure during His Majesty's pleasure, which is the first real security of tenure Indian High Court judges had.

2. Trace section 224 backwards and forwards. Backwards to section 107 of the Act of 1915 and section 15 of the Act of 1861; forwards to article 227 of the Constitution, which is drafted from it.

3. What does section 223 preserve, and which article of the Constitution repeats the technique? The jurisdiction of, and the law administered in, each existing High Court, and its judges' powers including the power to make rules, as they were immediately before Part III commenced. Article 225 of the Constitution does the same thing again for independent India.

4. Why does section 225 exist, and why is there nothing like it before 1935? Because the Act of 1935 distributed legislative powers between the Federation and the Provinces, so that an Act could be beyond the powers of the legislature that passed it. Before 1935 no Indian legislature had limits enforceable in that way, so no such question could arise in a lower court.

5. What does it mean that the High Court's expenses were "charged upon the revenues of the Province"? That they were not submitted to the vote of the legislature, so the court's funding could not be used as a means of pressure on it. Article 229(3) of the Constitution makes the same provision today.

Every element of that is article 131 of the Constitution: exclusive, original, between the Union and the States or between States, and confined to disputes involving a question on which the existence or extent of a legal right depends. When you meet article 131 you are meeting section 204.

Sections 205 to 207: appeals

205(1): an appeal lies to the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made under it; and it is the duty of every High Court to consider in every case whether such a question is involved and of its own motion to give or withhold a certificate.

205(2): where a certificate is given, any party may appeal on the ground that the question has been wrongly decided, and on any ground on which he could have appealed without special leave to His Majesty in Council had no certificate been given, and, with the leave of the Federal Court, on any other ground; and no direct appeal shall then lie to His Majesty in Council, with or without special leave.

That is article 132 of the Constitution, certificate and all, and the last words of 205(2) are the first attempt to stop a litigant bypassing the Indian court for London.

206: the Federal Legislature may by Act provide that in specified civil cases an appeal shall lie from a High Court without a certificate. That is the enlargement power under which the Federal Court (Enlargement of Jurisdiction) Act 1947 was later passed, and it is the ancestor of article 138.

207: an appeal lies from a High Court in a Federated State on a question concerning the interpretation of the Act or an Order in Council, or the extent of the authority vested in the Federation by an Instrument of Accession, or arising under an agreement about the administration of a Federal law in the State; such an appeal is by way of special case stated for the opinion of the Federal Court.

208: an appeal lies to His Majesty in Council from the Federal Court: without leave from a judgment given in its original jurisdiction in a dispute about the interpretation of the Act, and in any other case by leave of the Federal Court or of His Majesty in Council.

So the Federal Court is not the final court. It sits between the High Courts and the Privy Council, and that is the position until 1949.

Sections 210 to 213: what makes it a supreme court

210: all civil and judicial authorities throughout the Federation shall act in aid of the Federal Court, and its orders for attendance of persons, discovery or production of documents, or punishment of contempt are enforceable by all courts and authorities in every part of British India or a Federated State. That is article 144.

212: the law declared by the Federal Court, and by any judgment of the Privy Council, shall so far as applicable be recognised as binding on, and shall be followed by, all courts in British India, and in a Federated State so far as respects the Act or matters within the Federal Legislature's power. That is article 141, and it is the moment when a doctrine of binding precedent from an Indian court enters Indian law by statute.

213: if it appears to the Governor-General that a question of law has arisen or is likely to arise of such a nature and public importance that it is expedient to obtain the opinion of the Federal Court, he may in his discretion refer it to the court, which may after such hearing as it thinks fit report to him. That is article 143, the advisory jurisdiction, down to the word "report".

214: the court may with the Governor-General's approval make rules of court, including rules about persons practising before it and about the summary determination of frivolous or vexatious appeals. Compare article 145.

216: the administrative expenses of the Federal Court are charged upon the revenues of the Federation. Compare article 146(3).

The table a student should be able to reproduce

That table is the answer to the question "what did India inherit from the Government of India Act 1935?", so far as the courts are concerned, and it is worth learning as a table.

What the Federal Court did not have

Three things, and the omissions are as instructive as the powers.

No general appellate jurisdiction. It could not hear an ordinary civil or criminal appeal. A litigant with a large money claim and no constitutional question went past it, directly to the Privy Council. That is why the Act of 1947 had to enlarge its jurisdiction, and why article 133 and article 134 of the Constitution give the Supreme Court the general civil and criminal appeals the Federal Court lacked.

No power to enforce fundamental rights, because there were none. The Act of 1935 contained no bill of rights, so there was nothing corresponding to article 32.

No finality. The appeal to His Majesty in Council under section 208 stood above it.

A worked example

A Provincial Act of 1940 is challenged as being beyond the Province's legislative competence. Follow it.

1. The point arises in a subordinate court. Under section 225 the High Court must transfer the case to itself.
2. The High Court decides it, and must consider of its own motion under section 205(1) whether the case involves a substantial question of law as to the interpretation of the Act. It certifies.
3. The Federal Court hears the appeal under section 205(2). Its decision is, by section 212, binding on all courts in British India.
4. The losing party may appeal to His Majesty in Council under section 208(b), by leave of the Federal Court or of His Majesty in Council.
5. Now move the same case to 1955. Steps 1 to 3 are articles 228, 132 and 141, and step 4 does not exist: the Supreme Court is final.

What beginners get wrong

"The Federal Court was the Supreme Court of India." It was its predecessor. Article 374 of the Constitution provided that the judges of the Federal Court should become judges of the Supreme Court and that proceedings pending before it should stand transferred, which is a merger, not a continuation under a new name.

"It was the final court of appeal from India." It was not, until the Abolition of Privy Council Jurisdiction Act 1949. Section 208 gave an appeal from it to His Majesty in Council.

"It could hear any appeal from a High Court." Only on a certificate that the case involved a substantial question of law as to the interpretation of the Act, until the Federal Legislature enlarged its jurisdiction under section 206.

"The Chief Justice of India is a title from the Constitution." It is section 200(1) of the Act of 1935.

Limits and criticism

The Federal Court was a small court with a narrow jurisdiction, and for its first decade it was also a court in a constitution that had not been finished: the federation section 5 provided for never came into existence, because the necessary States never acceded, so a Federal Court sat over a federation that did not exist.

Its importance is out of proportion to the volume of its work, for two reasons.

It gave India, for the first time, one court whose decisions bound every other court in the country, by section 212. Before 1937 the law declared by the Calcutta High Court did not bind Madras, and the only common superior was in London.

And it is the template. The Constituent Assembly did not design the Supreme Court of India from first principles; it took the Federal Court, removed the appeal to London, added a general civil and criminal appellate jurisdiction, added article 136 and added article 32, and article 374 turned one court into the other overnight. The table above is the evidence.

Quick revision

• ss.200 to 218 of the Government of India Act 1935; the court began work in 1937.
• Chief Justice of India and not more than six puisne judges; appointed by warrant under the Royal Sign Manual; retiring age sixty-five; salary not variable to disadvantage; court of record sitting at Delhi.
• s.204: exclusive original jurisdiction in disputes between the Federation, Provinces and Federated States involving a question on which the existence or extent of a legal right depends.
• s.205: appeal from a High Court on a certificate of a substantial question of law as to the interpretation of the Act, which the High Court must consider of its own motion; then no direct appeal to His Majesty in Council.
• s.206: the Federal Legislature may allow appeals without a certificate in specified civil cases.
• s.208: appeal from the Federal Court to His Majesty in Council, without leave in the federal-dispute cases and otherwise by leave.
• s.210: all authorities to act in aid. s.212: its law binding on all courts. s.213: advisory opinion on the Governor-General's reference. s.216: expenses charged.
• It had no general appellate jurisdiction, no fundamental rights to enforce, and no finality.

Test yourself

1. Who could bring a case in the Federal Court's original jurisdiction, and about what? The Federation, any of the Provinces or any of the Federated States, in a dispute between two or more of them, if and so far as the dispute involved a question, of law or fact, on which the existence or extent of a legal right depended. The jurisdiction was exclusive of any other court.

2. On what condition did an appeal lie from a High Court in British India? On a certificate by the High Court that the case involved a substantial question of law as to the interpretation of the Act or an Order in Council made under it, which every High Court was bound to consider of its own motion in every case.

3. Name four provisions of the Constitution drawn from this chapter of the Act of 1935. Article 131 from section 204; article 132 from section 205; article 141 from section 212; article 143 from section 213. Articles 124, 125, 129, 130, 138, 144 and 146(3) are also drawn from sections 200, 201, 203, 206, 210 and 216.

4. Was the Federal Court the final court of appeal from India? No. Section 208 gave an appeal from it to His Majesty in Council, without leave in cases about the interpretation of the Act arising in its original jurisdiction and otherwise by leave. It became final only after the Abolition of Privy Council Jurisdiction Act 1949.

5. What three powers did the Federal Court lack that the Supreme Court of India has? A general civil and criminal appellate jurisdiction; any power to enforce fundamental rights, there being none in the Act; and finality, an appeal lying from it to the Privy Council.

Lord Brougham had put the case for reform in his speech on law reform in 1828, and his description of the jurisdiction is the best contemporary statement of its scale. The Council, he said, determined questions of colonial law, sat as judges in the last resort of all prize causes, and heard all plantation appeals, so that they were the supreme judges in the last resort over every foreign settlement, including the immense territories in the East where the Crown and a trading company ruled together over not less than seventy million subjects. He added the obvious objection: any tribunal in England must be an extremely inadequate court of review for matters so foreign to its habits and so far beyond the scope of its knowledge, and hardly any two colonies could be named that had the same law.

Section 3 of the Act of 1833: the Committee

The Act constitutes the Committee out of office-holders, not out of appointees. Its members are the President of the Privy Council, the Lord High Chancellor, and such members of the Privy Council as hold, or have held, any of a list of offices: Lord Keeper or First Lord Commissioner of the Great Seal, Lord Chief Justice or Judge of the Court of King's Bench, Master of the Rolls, Vice-Chancellor of England, Lord Chief Justice or Judge of the Common Pleas, Lord Chief Baron or Baron of the Exchequer, Judge of the Prerogative Court of the Archbishop of Canterbury, Judge of the High Court of Admiralty, and Chief Judge of the Court in Bankruptcy; together with past Presidents of the Council and past Lord Chancellors. These are to form a committee styled "The Judicial Committee of the Privy Council". His Majesty may in addition, by Sign Manual, appoint any two other Privy Councillors to be members.

Two features follow from that drafting and both matter.

The Committee is composed of judges by virtue of their offices, so it is in substance a court of the highest English judges. But it is not called a court, and its members sit as Privy Councillors, not as judges of a court of record.

Indian judges could not sit on it in 1833. The qualification is a list of English offices. Indian judges were admitted to the Judicial Committee only much later, and the first Indian member was appointed in the twentieth century.

Section 3 onwards: what it does with an appeal

All appeals, and complaints in the nature of appeals, that may be brought before His Majesty or His Majesty in Council from the determination, sentence, rule or order of any court or judge, are to be referred to the Judicial Committee, which hears them and reports its opinion.

Then the crucial formality: the Committee reports, and His Majesty in Council decides, and the decision takes effect as an Order in Council. Section 30 of the Act deals with the report and the resulting Order.

Three consequences follow, and a student should be able to give all three, because they are what makes the Privy Council different from any court a student has met.

It advises; it does not decide. The language of its judgments is "their Lordships will humbly advise His Majesty that the appeal be dismissed". The decision is the Sovereign's.

There was no dissent. Because the Committee tendered one piece of advice, a single opinion was delivered and dissenting opinions were not published. That rule lasted until 1966. A student comparing the Privy Council with the Supreme Court of India should notice that Indian law inherited a tradition in which the highest court spoke with one voice, and departed from it.

Its decisions bound Indian courts, and the Act of 1935 said so. Section 212 of that Act provides that the law declared by the Federal Court and by any judgment of the Privy Council shall so far as applicable be recognised as binding on all courts in British India. The doctrine of precedent in India is built on that.

Sections 21, 22 and 24: the Indian appeals in particular

Sections 21 and 22 deal with appeals from the Sadar Diwani Adalat, and they record a real administrative failure. Appeals had been transmitted under the seal of those courts, through the East India Company, to the office of the Privy Council, and the suitors had not taken the necessary measures to bring them on for hearing. The Act empowers His Majesty in Council to give directions to the Company and to others for bringing such appeals to a hearing, to appoint agents and counsel for the parties, and to make orders for security and payment of costs; and the appeals so brought on are to be heard and determined as if brought on by the parties in the usual course. The power applies only where no proceedings have been taken in England on either side for two years after the admission of the appeal by the Sadar court.

Section 24 empowers His Majesty in Council to make rules and orders regulating the mode, form and time of appeals from the Sadar Diwani Adalats and from any other courts in India or east of the Cape of Good Hope from which an appeal lies to His Majesty in Council, and to make regulations for preventing delays and as to the expenses of such appeals.

Those sections tell you what the practical problem with the Indian appeal was, and the next chapter gives the figures.

The prerogative, and special leave

One principle governs the whole subject and it is worth stating carefully, because it is the ancestor of article 136 of the Constitution.

The Crown has an inherent general right, not controlled by Acts of Parliament, to admit appeals from its subjects beyond the seas. Orders in Council and local rules are intended to regulate the manner in which that right is exercised, not to create it.

That is why an appeal to the Privy Council could be brought in two ways: as of right, where the local rules gave one, usually by reference to the value of the suit; and by special leave of the Council itself, in the exercise of the prerogative, where no appeal lay as of right.

The right was not unlimited in practice. Where a colonial legislature, acting under powers conferred by Parliament, had provided about appeals, the Privy Council held itself unable to admit an appeal below the value that legislation fixed. And in criminal cases the position was stricter still: it was held that where the charter of a Supreme Court had been granted in pursuance of an Act of Parliament, the Crown had abandoned its prerogative to receive appeals in cases of felony except by leave of the court below. Lord Brougham observed that the Crown might lawfully point out the manner in which the general right of appeal was to be exercised, allowing it in civil cases at all times and in criminal cases only in a certain form, delegating to the judges below the right to grant or refuse it.

A worked example

A litigant in Calcutta in 1840 loses in the Sadar Diwani Adalat in a suit worth Rs 60,000 and wants to go to London.

1. Is there an appeal as of right? Yes: from the Sadar Court of Bengal an appeal lay in civil suits of the value of £5,000 and upwards, and by Regulation XVI of 1797 the rules required a value of Rs 50,000 exclusive of costs and an appeal within six months of judgment. His suit qualifies.
2. Where does it go? To His Majesty in Council, and it is referred to the Judicial Committee.
3. Who hears it? English judges holding or having held the offices listed in section 3 of the Act of 1833.
4. What do they do? Hear the appeal and report their opinion. One opinion, no dissent.
5. What is the result? An Order in Council giving effect to the advice, which is the judgment.
6. And if he had lost in a criminal case? No appeal in felony except by leave of the court below.

What beginners get wrong

"The Privy Council was a court." It was a committee of the Privy Council that reported to the Sovereign. Its advice became an Order in Council. The distinction is formal and is worth stating, because it explains the single opinion and the language of the judgments.

"The Judicial Committee was created in 1726." The appeal to the King in Council from the Mayors' Courts dates from the Charter of 1726. The Judicial Committee as a defined body dates from the Act of 1833. Before that, appeals were heard by a committee of the whole Council.

"Indian judges sat on it from the beginning." Section 3 lists English offices. Indian participation came much later.

"The Privy Council could hear any Indian appeal." Only where a right of appeal existed under the local rules, or where it granted special leave under the prerogative, and not at all in felony except by leave of the court below.

Limits and criticism

Lord Brougham's objection in 1828 was never answered, and it is the criticism a student should make: a tribunal sitting in London, composed of English judges, deciding cases from territories whose law it did not know, and whose facts and habits were foreign to it, is by its nature an inadequate court of review.

Against that stand two things. The Judicial Committee was, for more than a century, the only court whose decisions bound the whole of India, so it supplied a uniformity that no Indian institution could until 1937. And it built, case by case, much of the Hindu law and Muslim law that Indian courts applied, because in the absence of a code the Privy Council's decisions were the law.

The honest verdict is the one the next two chapters set out to support: an institution that was in principle unsuited to the work, and that did the work better than the alternatives available at the time, and that had to end when India became a sovereign country because a foreign tribunal cannot be the final court of a State.

Quick revision

• Judicial Committee Act 1833, 3 & 4 Will. IV c. 41, 14 August 1833.
• The Privy Council kept its colonial appellate jurisdiction after the Act 16 Charles I c. 10 destroyed its domestic one; the House of Lords regained the English appeals.
• Before 1833, appeals were heard by a committee of the whole Council.
• s.3: the Committee is composed of the President of the Council, the Lord Chancellor, and holders and former holders of a list of high judicial offices who are Privy Councillors, plus two others whom His Majesty may appoint by Sign Manual.
• The Committee reports; His Majesty in Council decides; the decision is an Order in Council. Hence one opinion and no dissent until 1966.
• ss.21 and 22: powers to bring on Sadar Diwani Adalat appeals that the parties had left dormant for two years.
• s.24: rules for the mode, form and time of Indian appeals and for preventing delay.
• The prerogative: the Crown has an inherent right to admit appeals from subjects beyond the seas; local rules regulate its exercise. Hence special leave. No appeal in felony except by leave below.
• Section 212 of the Act of 1935 made the Privy Council's judgments binding on all courts in British India.

Test yourself

1. Why is it wrong to say the Privy Council "decided" an Indian appeal? Because the Judicial Committee heard the appeal and reported its opinion to His Majesty in Council, and the decision was given by His Majesty in Council as an Order in Council. The Committee advised; the Sovereign decided.

2. Who composed the Judicial Committee under the Act of 1833? The President of the Privy Council, the Lord High Chancellor, and such Privy Councillors as held or had held a list of high judicial offices including the Lord Chief Justice and judges of King's Bench, the Master of the Rolls, the Vice-Chancellor, judges of Common Pleas and Exchequer, the Judge of the Prerogative Court, the Judge of the High Court of Admiralty and the Chief Judge in Bankruptcy, together with former Presidents of the Council and former Lord Chancellors; and any two other Privy Councillors whom His Majesty appointed by Sign Manual.

3. Explain why the Privy Council delivered no dissenting opinions. Because it tendered a single piece of advice to the Sovereign. One opinion was delivered, and dissents were not published until the practice changed in 1966.

4. What is the prerogative basis of the appeal, and what did it produce? That the Crown has an inherent general right, not controlled by Acts of Parliament, to admit appeals from its subjects beyond the seas, local rules regulating only the manner of its exercise. It produced the appeal by special leave, which is the ancestor of article 136 of the Constitution.

5. What problem do sections 21 and 22 of the Act of 1833 reveal? That appeals from the Sadar Diwani Adalats were being transmitted to England through the East India Company and then left dormant because the suitors did not know how to prosecute them, so the Act gave power to bring on appeals in which no proceedings had been taken on either side for two years.

• in time, to six months from the date of the judgment; and
• in value, to cases where the judgment, exclusive of the costs of the suit, was of the value of Rs 50,000.

Route three: from Madras and Bombay

In 1818 the right of appeal from the Sadar Courts of Madras and Bombay to the Privy Council was established. In all the Presidencies a reservation was made of the Sovereign's right to reject or receive appeals notwithstanding any provision in the regulations limiting or controlling the right of appeal.

That reservation is the prerogative in operation, and it is what makes a pecuniary limit in India a rule about appeals as of right rather than a bar on the Sovereign's power to admit one.

The figures, and what they mean

Cowell records the number, and it is startling: in the sixty years between the establishment of the Supreme Court of Calcutta and the Act of William IV that constituted the Judicial Committee, that is from 1774 to 1833, only fifty appeals were instituted.

Fifty appeals in sixty years, from a country of tens of millions, with three routes and three courts of appeal in each Presidency.

The majority of them came from the Supreme Courts, which were from the first regarded as offshoots of the courts of Westminster Hall: their suits were conducted by English counsel and attorneys, and their litigants were either Europeans or Indians in the habit of close intercourse with Europeans. Both the suitors and the practitioners in the provincial courts were very little acquainted with the mode of procedure in appeals to England, and either shrank from the attempt or, from ignorance of the necessary proceedings, failed either to follow up or to withdraw an appeal once begun.

Why the provincial appeals failed

The explanation Cowell gives is precise, practical, and worth an answer of its own.

When appeals lay to the Governor-General from the Sadar courts, decisions were returned without anything being required to be done by the parties. The litigant filed his appeal and waited, and in due course a decision came back.

When the same appeal was transmitted to England, the parties waited in exactly the same way, and nothing happened, because in London an appeal must be prosecuted: agents must be appointed, security given, cases printed, counsel instructed. Nobody had told them, and there was nobody in London to act for them.

The result is the one recorded in the Act of 1833 itself, in sections 21 and 22: appeals transmitted under the seal of the Sadar courts through the East India Company to the Privy Council office, lying there because the suitors had taken no steps. And the consequence for the litigants was worse than delay. In many cases the property in dispute was eaten up by private and public debt, and the litigants were either ruined or greatly impoverished.

That is the strongest single criticism of the appeal in this period, and it is not a criticism of the tribunal at all. A right of appeal that only a European or an Anglicised litigant can in practice exercise is not a right of appeal for everybody.

A worked example

Two litigants lose in 1820, one in Calcutta and one in a mofussil district.

The Calcutta merchant, an Englishman, loses in the Supreme Court in a suit worth 5,000 pagodas. His attorney is an English attorney of that court, who knows the practice: he petitions the King in Council, gives security, instructs a London agent, and the case is heard. He is one of the fifty.

The zamindar, having lost in the Sadar Diwani Adalat in a suit worth Rs 60,000, is within the pecuniary limit and files his appeal within six months as Regulation XVI of 1797 requires. The papers go under the seal of the Sadar court, through the East India Company, to London. He waits, because that is what one did when the appeal was to the Governor-General. Nothing is done in England on either side. Two years later the Act of 1833 will give the Privy Council power to bring on such an appeal of its own motion, but by then he may have sold the land to pay his debts.

Same country, same year, two litigants with a right of appeal, and only one of them has an appeal.

Distinctions worth having straight

What beginners get wrong

"There was one appeal to the Privy Council." There were three routes with different limits, and until 1861 they ran from different courts. A single appellate route from India arrives only when the High Courts replace both systems.

"The appeal began with the Judicial Committee in 1833." The appeal is much older; 1833 reorganised who heard it. The Charter of 1726 is where the appeal to the King in Council from India begins.

"A pecuniary limit meant no appeal below that value." It meant no appeal as of right. The Sovereign's power to admit an appeal by special leave was expressly reserved, though the Council declined to exercise it where a legislature acting under parliamentary authority had itself provided about appeals.

"Few appeals were brought because Indians were content with the courts." They were brought rarely because prosecuting an appeal in London required knowledge, agents and money that litigants outside the Presidency Towns did not have. Cowell says so, and the Act of 1833 legislated about it.

Limits and criticism

The period from 1726 to 1860 shows an appellate system that existed on paper for the whole of British India and in practice for a few hundred people in three towns.

Three things account for it: the distance, which made an appeal a matter of years; the cost and unfamiliar procedure, which required a London agent and printed cases; and the absence of any Indian institution to prepare or prosecute appeals, so that the papers arrived and lay there.

The remedy adopted was not to change the tribunal but to change the courts below it. Once the High Courts existed after 1862, appeals came from a single court in each Presidency, with an English-trained bar practising in it, and the volume of Indian appeals to the Privy Council rose enormously. That is the subject of the next chapter, and it is the period in which the Privy Council actually shaped Indian law.

Quick revision

• Charter of 1726: appeal from the Mayor's Court to the Governor in Council, and above 1,000 pagodas to the King in Council, within fourteen days.
• Supreme Courts and Recorders' Courts: appeal above 1,000 pagodas, except Bombay, 3,000 Bombay rupees. The Council might refuse to admit, and might reform, correct or vary.
• Settlement Act 1781: appeal from the Sadar court of Bengal in civil suits of £5,000 and upwards.
• Regulation XVI of 1797: rules for that appeal: within six months, value Rs 50,000 exclusive of costs.
• 1818: appeal established from the Sadar Courts of Madras and Bombay. The Sovereign's right to receive or reject was reserved throughout.
• Only fifty appeals in the sixty years from 1774 to 1833, mostly from the Supreme Courts.
• Provincial appeals failed because litigants who were used to waiting for a decision from the Governor-General waited in vain for one from London, and the property in dispute was often eaten up by debt.

Test yourself

1. Give the three routes of appeal to the Sovereign in Council before 1861, with their limits. From the Mayors' Courts through the Governor in Council, and from the Recorders' and Supreme Courts, where the value exceeded 1,000 pagodas, except at the Supreme Court of Bombay where it had to exceed 3,000 Bombay rupees; from the Sadar Diwani Adalat of Bengal under the Settlement Act 1781 in civil suits of £5,000 and upwards, regulated by Regulation XVI of 1797 at Rs 50,000 exclusive of costs and six months; and from the Sadar Courts of Madras and Bombay from 1818.

2. How many appeals were instituted between 1774 and 1833, and from where mostly? Fifty, and mostly from the Supreme Courts, whose suits were conducted by English counsel and attorneys for European or Anglicised litigants.

3. Why did appeals from the provincial courts fail so often? Because litigants accustomed to appeals to the Governor-General, in which nothing was required of the parties after filing, waited in the same way for a decision from London, where an appeal had to be actively prosecuted. Appeals lay dormant in the Privy Council office, and in many cases the property in dispute was consumed by debt and the litigants ruined.

4. What did Regulation XVI of 1797 do, and why was it necessary? It provided rules for appeals from the Sadar court of Bengal to the Privy Council, limiting them to six months from judgment and to a value of Rs 50,000 exclusive of costs. It was necessary because Parliament had prescribed no rules for those appeals and, unlike the Supreme Court, the Sadar court had no statutory power to frame them.

5. Did a pecuniary limit prevent the Sovereign from hearing a smaller appeal? Not in principle: the Sovereign's right to receive or reject appeals was expressly reserved notwithstanding provisions limiting the right of appeal, and that prerogative is the basis of special leave. In practice the Council declined to admit an appeal below a limit fixed by a legislature acting under powers conferred by Parliament.

Section 15 of the Act of 1861 is also worth naming here, though it is not an appeal provision: the High Court's superintendence over all courts subject to its appellate jurisdiction meant that the corrective work in ordinary cases stayed in India, and only the questions worth the journey went further.

What the Privy Council did with Indian law

This is the part of the topic that examiners reward and textbooks skimp, so it is worth being concrete.

For most of this period there was no Indian court whose decisions bound the whole country. The Calcutta High Court did not bind Madras. The Federal Court did not exist until 1937, and when it came its jurisdiction was confined to constitutional questions. So the only tribunal whose decisions were authoritative everywhere in British India was the Judicial Committee, and section 212 of the Government of India Act 1935 said so expressly: the law declared by the Federal Court and by any judgment of the Privy Council was to be recognised as binding on all courts in British India.

The consequence is that between 1861 and 1949 the Judicial Committee settled, case by case, large parts of the Hindu law and Muslim law administered in India, in the areas where those laws were uncodified, and much of the general law besides. Where a code existed, as in contract from 1872, its work was interpretation; where none existed, as in joint family property, its decisions were the law.

Two criticisms of that body of work are standard and both are fair. The Committee was applying personal laws it knew only through translations, English textbooks and the arguments of English counsel, and it occasionally fixed as law a proposition that Indian scholarship afterwards questioned. And its decisions were slow and expensive to obtain, so the law was settled for those who could afford to settle it.

Two defences are equally fair. It supplied a uniformity no Indian institution could until 1937. And its distance from the parties, which is a defect in fact-finding, is an advantage in a jurisdiction where the courts below sat under the eye of the executive: the Judicial Committee was, whatever else, wholly beyond the reach of the Government of India.

What changed in 1937

The Government of India Act 1935 inserted a new court between the High Courts and London for one class of case.

Section 205: where a High Court certified that a case involved a substantial question of law as to the interpretation of the Act or an Order in Council under it, the appeal lay to the Federal Court, and where such a certificate was given no direct appeal lay to His Majesty in Council, with or without special leave.

Section 206: the Federal Legislature might by Act provide for appeals to the Federal Court in specified civil cases without a certificate. That power was used in 1947.

Section 207: appeals from a High Court in a Federated State on constitutional questions, by way of special case stated.

Section 208: an appeal lay from the Federal Court to His Majesty in Council: without leave from a judgment in its original jurisdiction on the interpretation of the Act or the extent of the Federation's authority under an Instrument of Accession, and in any other case by leave of the Federal Court or of His Majesty in Council.

So from 1937 the ladder had four rungs for a constitutional case, and three for everything else:

A worked example

A suit about a Hindu joint family in the Bombay Presidency in 1930, and the same suit in 1940.

1930. Tried in the district court; appealed to the High Court of Bombay on its appellate side; and, if the valuation conditions in the Letters Patent and the Code are met and, the decree being one of affirmance, a substantial question of law is involved, appealed to His Majesty in Council. If the conditions are not met, an application for special leave.

1940, with a constitutional point added. Suppose the suit turns on the validity of a Provincial Act. Under section 225 the High Court must transfer the case to itself. It decides, and under section 205(1) must consider of its own motion whether to certify. If it certifies, the appeal goes to the Federal Court, and no direct appeal to His Majesty in Council is then possible. From the Federal Court, an appeal to His Majesty in Council by leave under section 208(b).

What beginners get wrong

"Appeals to the Privy Council ended in 1949." The date in MU's label is 1949 and it is the middle of three steps. Civil appeals were moved to the Federal Court in 1948, the jurisdiction was abolished in 1949, and article 374 of the Constitution dealt with what was left in 1950. The next chapter separates them.

"Every case could go to the Privy Council." Only on satisfying the pecuniary and other conditions, or by special leave. In criminal matters special leave was granted sparingly, and only where there had been a grave miscarriage of justice or a serious departure from legal process.

"The Federal Court replaced the Privy Council in 1937." It was inserted below it for constitutional appeals. Section 208 kept an appeal from the Federal Court to His Majesty in Council.

"The Privy Council only interpreted statutes." In the uncodified areas of Hindu and Muslim law its decisions were the law, because no Indian court's decisions bound the whole country until 1937.

Limits and criticism

The period is the strongest and the weakest phase of the appeal at the same time, and an answer should say so in those terms.

Strongest, because the Judicial Committee did what no Indian institution could: it gave the whole of British India one body of authoritative decisions, binding by statute after 1935, wholly outside the control of the Government of India, and staffed by judges of the first rank.

Weakest, because by the 1930s the objection to it had become constitutional rather than practical. A country moving towards self-government cannot have its final court in the capital of another country, composed of that country's judges, advising that country's sovereign. Nothing about the quality of the work answers that objection, and it is the objection that ended the appeal.

The transition was managed, not abrupt, and the way it was managed is the subject of the next chapter.

Quick revision

• After 1862 appeals came from a single court in each Presidency, the High Court, and the volume rose sharply.
• Two routes: as of right, on a pecuniary test plus, for a decree of affirmance, a substantial question of law; and by special leave under the prerogative, granted sparingly in criminal cases.
• Between 1861 and 1949 the Judicial Committee was the only tribunal whose decisions bound the whole of British India, and section 212 of the Act of 1935 made its judgments binding by statute.
• 1937: the Federal Court interposed by s.205 for cases certified to involve a substantial question of law as to the interpretation of the Act, and then no direct appeal to His Majesty in Council; s.206 allowed the legislature to enlarge; s.207 covered Federated States; s.208 gave an appeal from the Federal Court to His Majesty in Council, without leave in the constitutional original-jurisdiction cases and otherwise by leave.
• The objection that ended it was constitutional, not practical.

Test yourself

1. Why did the number of Indian appeals rise so much after 1861? Because there was now one court in each Presidency to appeal from instead of two on different terms; because the High Courts had a professional bar that understood appellate practice; and because the ordinary property litigation of the mofussil now reached a court from which an appeal to London lay.

2. State the two routes of appeal from a High Court, and the extra requirement for a decree of affirmance. As of right, where the value of the subject matter and the nature of the decision satisfied the conditions in the Letters Patent and the Code of Civil Procedure; and by special leave of the Privy Council under the prerogative. Where the High Court's decree affirmed the decision below, the appeal as of right additionally required a substantial question of law.

3. What did section 205 of the Act of 1935 change about the route to London? It sent cases certified by a High Court to involve a substantial question of law as to the interpretation of the Act to the Federal Court, and provided that where such a certificate was given no direct appeal lay to His Majesty in Council, with or without special leave.

4. Why were the Privy Council's decisions so important to Indian law in this period? Because no Indian court's decisions bound the whole of British India before 1937, and the Federal Court's jurisdiction was confined to constitutional questions; so in the uncodified areas of Hindu and Muslim law and in much of the general law the Judicial Committee's decisions were the law, and section 212 of the Act of 1935 made them binding by statute.

5. What was the objection that finally ended the appeal? Not the quality of the work but the constitutional position: a country moving to self-government cannot have its final court sitting in another country, composed of that country's judges and advising that country's sovereign.

Section 2 defines two expressions. A "High Court" means any High Court to which Chapter II of Part IX of the Government of India Act 1935 applies, that is, the High Courts of the last two chapters. A "judgment to which this Act applies" means any judgment, decree or final order of a High Court in a civil case from which a direct appeal could have been brought to His Majesty in Council, either with or without special leave, had the Act not been passed.

Section 3 is the enlargement itself. As from the appointed day:

• an appeal shall lie to the Federal Court from any judgment to which the Act applies, without the special leave of the Federal Court if an appeal could have been brought to His Majesty in Council without special leave under the Code of Civil Procedure 1908 or any other law in force immediately before the appointed day, and with the special leave of the Federal Court in any other case;
• in any such appeal it shall be competent for the Federal Court to consider any question of the nature mentioned in section 205(1) of the Act of 1935, that is, a substantial question of law as to the interpretation of that Act; and
• no direct appeal shall lie to His Majesty in Council, with or without special leave, from any such judgment.

Read the second limb again. It joins the two jurisdictions: a court hearing an ordinary civil appeal may now decide a constitutional question in it, without a separate certificate. That is the shape of the Supreme Court of India's work today.

Section 4 continues what the High Courts had already done. All proceedings and steps taken in, and orders made and certificates granted by, a High Court in connection with an appeal to His Majesty in Council from a judgment to which the Act applies are deemed to be proceedings and steps taken in connection with an appeal to the Federal Court, unless the records had already been transmitted to His Majesty in Council before the appointed day. A litigant who had obtained a certificate for London did not have to start again.

Section 5 deals with pending applications for special leave. Every application to His Majesty in Council for special leave to appeal from a judgment to which the Act applies, remaining undisposed of immediately before the appointed day, stands transferred and is to be disposed of by the Federal Court as if it had been an application duly made to that Court.

Section 6 modifies existing laws. The provisions of the Code of Civil Procedure 1908 and of any other law in force immediately before the appointed day relating to direct appeals in civil cases to His Majesty in Council have effect, in relation to an appeal from a judgment to which the Act applies, as if for all references to His Majesty in Council there had been substituted references to the Federal Court. One drafting device converts a whole body of appellate law.

Section 7 is the saving. The preceding provisions do not apply to an appeal which was pending before His Majesty in Council immediately before the appointed day if the records had been transmitted before that day, or to the bringing of an appeal for which special leave had been granted before the appointed day; and any such appeal may be disposed of by His Majesty in Council as if the Act had not been passed.

Section 8 answers the practical question sections 4 and 7 both raise: who decides whether the records were transmitted before the appointed day? A certificate of the Registrar of the High Court that they were or were not transmitted is conclusive evidence on the question.

Step two: the Act of 1949

The Abolition of Privy Council Jurisdiction Act 1949 abolished the jurisdiction of the Privy Council over India.

This is the date MU prints, and it is the right date for the proposition "appeals to the Privy Council ended". It is not the right date for either of the other two propositions, and an answer that gives only 1949 is giving a third of the story.

Step three: the Constitution, 1950

Two articles do the work, and a student should be able to name both.

Article 124 establishes the Supreme Court of India, consisting of a Chief Justice of India and other judges. That is a new court, created by the Constitution.

Article 374 is the transitional provision, and it is the article that makes the transfer painless. It provides that the judges of the Federal Court holding office immediately before the commencement of the Constitution shall, unless they elect otherwise, become judges of the Supreme Court; that all suits, appeals and proceedings pending in the Federal Court shall stand removed to the Supreme Court, which shall have jurisdiction to hear and determine them; and that the judgments and orders of the Federal Court delivered or made before the commencement shall have the same force and effect as if delivered by the Supreme Court. It also deals with what was to happen to appeals to His Majesty in Council still pending.

Article 135 completes the picture for jurisdiction: until Parliament otherwise provides, the Supreme Court has jurisdiction and powers in relation to any matter to which articles 133 and 134 do not apply, if jurisdiction and powers in relation to it were exercisable by the Federal Court immediately before the commencement. That is how the enlarged civil jurisdiction given by the Act of 1948 passed to the Supreme Court.

Why it took three steps

Because each step answered a different problem, and it is worth setting them out that way.

The Act of 1948 answered a practical problem: appeals were going to London from a country that was about to become independent, at great expense and delay, and the Federal Court existed and could take them.

The Act of 1949 answered a constitutional problem: a sovereign Dominion cannot have a foreign tribunal as its final court, however good that tribunal is.

Article 374 answered a transitional problem: what happens to the judges, the pending cases and the decided cases when one court is replaced by another. Its answer is continuity, and it is why no Indian litigant lost anything in the change.

A worked example

Follow one appeal through all three steps.

A civil appeal filed in 1946 from the Bombay High Court, on a valuation certificate, to His Majesty in Council.

1. Under the Act of 1948 the class of appeal is transferred: civil appeals that would have gone to His Majesty in Council go to the Federal Court. Whether this particular pending appeal moves depends on the Act's own transitional provisions.
2. Under the Act of 1949 the Privy Council's jurisdiction over India is abolished, so nothing further can go there.
3. On 26 January 1950, under article 374, any part of it still pending in the Federal Court stands removed to the Supreme Court, which hears it. Judgments already given by the Federal Court have effect as if given by the Supreme Court.

The litigant's case is decided by a different court from the one he filed in, under a different constitution, and nothing about his rights in the appeal is lost. That is what a good transitional provision does.

What beginners get wrong

"The Privy Council appeal was abolished in 1949." It was abolished in 1949, having been largely emptied by the Act of 1948, and the last consequences were dealt with by article 374 in 1950. Give all three.

"The Federal Court became the Supreme Court." Not by continuation. Article 124 created the Supreme Court; article 374 transferred the Federal Court's judges, its pending cases and the effect of its judgments to it. The distinction matters, and it is the same distinction as between the Supreme Court at Calcutta and the Supreme Court of India, which are different institutions with the same name.

"India abolished the appeal because the Privy Council decided against India." The reason is constitutional, and independence is what supplies it. Ceylon, Canada, Australia and others ended the appeal at various dates for the same reason.

"The Supreme Court inherited the Privy Council's special leave." It has a power of its own, article 136, which is drafted much more widely than the Privy Council's practice and is a new creation, although the idea plainly descends from special leave.

Limits and criticism

The end of the appeal is usually described as a nationalist step and it is worth adding the two legal observations that make it a better answer.

What India lost was a court of very high quality, entirely outside the reach of the executive, whose decisions had given the whole country one body of law for eighty-eight years. Every Indian judge of the period acknowledged the quality of that work, and the Constitution itself preserved its authority by making the Federal Court's and the Privy Council's decided law effective until altered.

What India gained was not merely a court of its own but a final court with a jurisdiction no Indian court had ever had: articles 32 and 136 give the Supreme Court powers the Privy Council never possessed, and the Federal Court's constitutional jurisdiction was joined to a general civil and criminal appellate jurisdiction and to the enforcement of fundamental rights.

So the right conclusion is not that a foreign court was replaced by an Indian one. It is that a system in which the final court could do little was replaced by one in which the final court can do a great deal, and Module III is about what it does with it.

Quick revision

• Three steps, and MU's date is the middle one.
• Federal Court (Enlargement of Jurisdiction) Act 1947, Act 1 of 1948: transferred the civil appellate jurisdiction exercisable by His Majesty in Council to the Federal Court, using the power in s.206 of the Act of 1935. Not an abolition.
• Abolition of Privy Council Jurisdiction Act 1949: abolished the Privy Council's jurisdiction over India.
• Constitution, 1950: article 124 creates the Supreme Court of India; article 374 transfers the Federal Court's judges, its pending proceedings and the effect of its judgments; article 135 carries over the jurisdiction the Federal Court had.
• What was gained: articles 32 and 136, and a general appellate jurisdiction, none of which the Privy Council had.

Test yourself

1. Set out the three steps by which the appeal to the Privy Council ended, with their instruments. The Federal Court (Enlargement of Jurisdiction) Act 1947, Act 1 of 1948, which transferred the civil appellate jurisdiction exercisable by His Majesty in Council to the Federal Court; the Abolition of Privy Council Jurisdiction Act 1949, which abolished the jurisdiction; and the Constitution of India, article 374 of which transferred the Federal Court's judges and pending proceedings to the Supreme Court created by article 124.

2. Under what power was the Act of 1948 passed? Section 206 of the Government of India Act 1935, which allowed the Federal Legislature by Act to provide for appeals to the Federal Court in specified civil cases without a certificate.

3. What exactly does article 374 provide? That the judges of the Federal Court holding office immediately before the commencement of the Constitution shall, unless they elect otherwise, become judges of the Supreme Court; that suits, appeals and proceedings pending in the Federal Court shall stand removed to the Supreme Court; and that judgments and orders of the Federal Court delivered or made before the commencement shall have the same force and effect as if delivered by the Supreme Court.

4. Why is it wrong to say the Federal Court "became" the Supreme Court? Because the Supreme Court was created by article 124 as a new court, and article 374 transferred to it the Federal Court's judges, pending cases and the effect of its judgments. The two are different institutions, connected by a transitional provision.

5. What did the Supreme Court gain that neither the Federal Court nor the Privy Council had? A general civil and criminal appellate jurisdiction combined with a constitutional one, the power under article 136 to grant special leave in any cause or matter from any court or tribunal, and the power under article 32 to enforce fundamental rights, which did not exist before 1950.

Read that table beside the Module II table of sections of the Act of 1935 against articles of the Constitution, and the point of this book becomes visible. The court a student will practise in was made in 1862, given a constitutional footing in 1935 and re-founded in 1950, and each step preserved what the one before had built.

The one deliberate reversal

There is one place where the Constitution goes the other way, and it is worth naming here because two chapters later depend on it.

Article 50 provides that "The State shall take steps to separate the judiciary from the executive in the public services of the State."

That is a Directive Principle, not a right, and it is the Constitution's answer to the arrangement Module I describes: the Collector who was also the judge, and the Governor-General in Council who was also the Sadar Diwani Adalat. It is the constitutional endorsement of Cornwallis's judgment of 1793, made a hundred and fifty-seven years later and put among the directives rather than among the rights.

What "integrated" means, and what it does not

Indian textbooks describe the judiciary as integrated or unified, and the word needs care.

It means that there is a single hierarchy: subordinate courts, then the High Court of the State, then the Supreme Court of India; that the same courts administer both Union law and State law; and that the law declared by the Supreme Court binds every court in the country.

It does not mean that the courts are administered by one authority. The High Courts are constituted for States, their judges are appointed under article 217, and the control over the district judiciary is vested by article 235 in the High Court of the State, not in the Supreme Court.

The contrast usually drawn is with the United States, where federal courts and State courts are separate hierarchies applying different bodies of law with a limited connection at the top. India took the opposite course, and it took it because the country it inherited already had a single hierarchy of courts administering both provincial and central law, which is the Act of 1861's doing.

A worked example

A tenancy dispute in a Maharashtra village in 1955. Follow the court structure that decides it and ask, at each level, where that court comes from.

1. The munsif's court or the court of the civil judge, junior division. Its ancestry is the office created in the years after Cornwallis, described at [Sir John Shore and the Progress of the Adalat System], and it is continued by articles 233 to 237.
2. Appeal to the district judge. The office is the zillah judge of Regulation V of 1793, and article 236 defines "district judge" for the Constitution.
3. Second appeal to the High Court of Bombay, on the appellate side. That side of the court is the Sadar Diwani Adalat's inheritance, merged into the High Court by the Act of 1861 and continued by article 225.
4. Appeal to the Supreme Court of India by special leave under article 136, which is the Privy Council's special leave with a wider text and an Indian court exercising it.

Four courts, and only one of them, the last, is younger than a hundred and fifty years.

What beginners get wrong

"The Constitution created the Indian judiciary." It created one court, the Supreme Court, and continued everything below it. Articles 214, 225, 233 to 237 and 372 are the continuity provisions.

"The Supreme Court of India is the old Supreme Court at Calcutta." They are different institutions with the same name, a hundred and seventy-six years apart. The Calcutta court was abolished in 1862; the Supreme Court of India was created in 1950.

"An integrated judiciary means the Supreme Court controls all the courts." Control over the district judiciary is vested in the High Court of the State by article 235. The Supreme Court's authority over the whole system is through article 141, not through administration.

"Article 50 guarantees the separation of the judiciary from the executive." It is a Directive Principle and is not enforceable by a court. What is enforceable is judicial review under articles 32 and 226, and the guarantees of tenure and salary the later chapters set out.

Limits and criticism

Two observations are worth making at the start of Module III, and both come from Modules I and II rather than from the Constitution.

The first is that continuity was a choice and it had a price. India kept the Letters Patent, the original and appellate sides, the district hierarchy of the Regulations, the Codes and the personal laws. That gave the new republic a working judicial system on day one, which is not a small thing. It also carried forward a procedure designed for a colonial administration, and the delays that Module I first records in the 1790s and Module II records in the 1830s are recognisably the delays complained of today.

The second is that what the Constitution added was power, not structure. Judicial review, fundamental rights and article 32 gave the same courts a new function. Whether an institution built for one purpose can perform another is the question the rest of Module III is about, and the cases that answer it, from Kesavananda Bharati onwards, are cases about how far a court may go.

Quick revision

• New in 1950: a written fundamental law enforceable against the legislature; article 32, which makes the remedy itself a fundamental right; and one integrated judiciary with article 141.
• Continued: the High Courts (art. 214), their jurisdiction and law (art. 225), their superintendence (art. 227), the district judiciary (arts. 233 to 237), all laws in force (art. 372), and the Federal Court's judges and cases (art. 374).
• Article 50: a Directive Principle that the State shall take steps to separate the judiciary from the executive in the public services of the State.
• Integrated means one hierarchy administering both Union and State law with the Supreme Court's law binding on all courts; it does not mean one administering authority, because article 235 vests control over the district judiciary in the High Court.

Test yourself

1. Name the three things about the courts that were genuinely new in 1950. A written fundamental law that a court could enforce against the legislature, including fundamental rights and article 13; article 32, which makes the right to move the Supreme Court for the enforcement of those rights itself a fundamental right; and a single integrated judiciary whose apex court's declared law binds all courts under article 141.

2. Which articles carried the existing courts forward, and what did each continue? Article 214 continued a High Court for each State; article 225 continued each existing High Court's jurisdiction and the law it administered; article 227 continued its superintendence; articles 233 to 237 continued the district judiciary; article 372 continued all laws in force; and article 374 transferred the Federal Court's judges and pending proceedings.

3. What does article 50 provide, and what is its status? That the State shall take steps to separate the judiciary from the executive in the public services of the State. It is a Directive Principle of State Policy and is not enforceable by a court.

4. Explain what is and is not meant by calling the Indian judiciary "integrated". It means a single hierarchy from the subordinate courts through the High Courts to the Supreme Court, administering both Union and State law, with the Supreme Court's declared law binding on all courts. It does not mean central administration: control over the district judiciary is vested in the High Court of the State by article 235.

5. Give the ancestry of a High Court's appellate side. The Sadar Diwani Adalat, merged with the Supreme Court into the High Court by the Indian High Courts Act 1861, its jurisdiction preserved by the Letters Patent of 1865, continued by section 223 of the Government of India Act 1935 and continued again by article 225 of the Constitution.

So the words in the printed text are not the law. What is the law is the position before the amendment, "after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary", because the judgment held that with the amendment struck down the provisions it had sought to amend automatically revive and the status quo ante is restored. The chapter on appointments works out what "consultation" now means.

A warrant under the President's hand and seal is the formal instrument of appointment, and it is the same technique as the "warrant under the Royal Sign Manual" of section 200(2) of the Act of 1935.

Sixty-five is the retiring age, and it too is the figure in section 200(2) of that Act.

Article 124(2), provisos: resignation and removal

A Judge may resign by writing under his hand addressed to the President.

A Judge may be removed from his office in the manner provided in clause (4), and clause (4) is one of the two or three most important provisions in Module III.

Article 124(4): a Judge shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

Take that apart, because each element is a protection.

• Only the President may remove, and only on an address; the executive cannot dismiss a judge.
• Both Houses must address, so one House cannot do it.
• Two majorities are required in each House: of its total membership, and of two-thirds of those present and voting.
• In the same session, so the two addresses must be part of one proceeding.
• And only on proved misbehaviour or incapacity: not on the ground that the judge's decisions are unpopular, and "proved" imports an inquiry, which the Judges (Inquiry) Act 1968 provides for.

Set that beside section 4 of the Indian High Courts Act 1861, under which a judge held office during Her Majesty's pleasure, and beside section 220(2) of the Act of 1935, which gave a retiring age but no removal procedure. Article 124(4) is the first time in this book that the terms on which a judge can be got rid of are written down and made difficult.

Article 124(5) empowers Parliament to regulate the procedure for the presentation of an address and for the investigation and proof of misbehaviour or incapacity.

Article 124(3): who may be a judge

A person is qualified for appointment only if he is a citizen of India and:

• has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
• has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
• is, in the opinion of the President, a distinguished jurist.

Three routes, and it is worth noticing what has happened to the qualifications since 1861. The Act of 1861 had four classes and a two-thirds rule reserving a third of the bench to English barristers and a third to the Covenanted Civil Service. The Act of 1915 restated them. The Constitution reduces them to three, removes every reference to nationality except citizenship, removes the reserved proportions, and adds the distinguished jurist, a category never yet used.

Article 124(6) requires the oath or affirmation in the form in the Third Schedule, and article 124(7) provides that a retired Judge of the Supreme Court shall not plead or act in any court or before any authority within the territory of India. That last provision is a guarantee of independence of a kind Module I would have found useful: a judge who cannot practise afterwards has nothing to gain from pleasing a future client.

Articles 125 to 128

125: the Judges' salaries are as specified in the Second Schedule, and their privileges, allowances, leave and pension are as Parliament may from time to time determine, provided that neither shall be varied to his disadvantage after his appointment. That proviso is section 104 of the Act of 1915 and section 201 of the Act of 1935, and it is one of the classic guarantees.

126: when the office of Chief Justice is vacant, or the Chief Justice is unable to perform his duties, they shall be performed by such one of the other Judges as the President may appoint. Compare section 202 of the Act of 1935, where the appointment was by the Governor-General in his discretion.

127: ad hoc Judges. If there is not a quorum of Judges available to hold or continue a session, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request a High Court Judge duly qualified for appointment to the Supreme Court to attend as an ad hoc Judge. (The printed text of this article also carries words inserted by the Ninety-ninth Amendment and struck down with it.)

128: attendance of retired Judges. The Chief Justice of India may, with the previous consent of the President, request a person who has held office as a Judge of the Supreme Court, or of the Federal Court, or of a High Court and is duly qualified for appointment to the Supreme Court, to sit and act as a Judge of the Supreme Court, and while so sitting he has all the jurisdiction, powers and privileges of a Judge but is not otherwise deemed to be one.

Article 128's mention of the Federal Court is a small piece of history embedded in the text: in 1950 there were living judges of that court, and the Constitution allowed the new Supreme Court to call on them.

A worked example

A judge of the Supreme Court is accused of misconduct in 1998. What has to happen before he can be removed?

1. A motion for an address must be admitted in either House, with the number of members the Judges (Inquiry) Act requires.
2. A committee inquires and must find the misbehaviour or incapacity proved. Article 124(4) says "proved", and the word does the work.
3. Each House must then pass an address, by a majority of its total membership and by two-thirds of those present and voting.
4. Both addresses must be presented to the President in the same session.
5. The President then passes an order of removal.

Notice that at no point can the Government remove him, and that the two majorities in step 3 mean that removal requires a degree of cross-party agreement. Compare a High Court judge in 1900, holding office during His Majesty's pleasure.

What beginners get wrong

"The Constitution fixes the number of Supreme Court judges." It fixes a minimum, the Chief Justice and seven others, and leaves the number to Parliament by law. Do not quote a figure from the Constitution.

"Judges are impeached." The Constitution does not use the word impeachment for judges; it is used for the President under article 61. Article 124(4) speaks of removal by an order of the President after an address of each House on the ground of proved misbehaviour or incapacity. Use the Constitution's words.

"Article 124A provides for the National Judicial Appointments Commission." It is printed in the Constitution and it is not law: the Ninety-ninth Amendment that inserted it was struck down on 16 October 2015, and the print carries a footnote saying so. The pre-amendment text revives.

"A distinguished jurist has been appointed under article 124(3)(c)." The category exists and has not been used. Do not assert an example.

Limits and criticism

Article 124 is a strong provision and it has one visible weakness and one invisible one.

The visible weakness is that the appointment clause, as it now stands after the striking down of the Ninety-ninth Amendment, says only "after consultation", and everything that governs how judges are actually appointed comes from three judgments rather than from the text. The chapter on appointments sets that out. Whatever one thinks of the collegium, it is an unusual state of affairs for the most important appointing power in a constitution to be governed by case law.

The invisible weakness is that a removal procedure which requires two special majorities in both Houses in the same session is, in practice, nearly impossible to complete, and no judge of the Supreme Court has been removed under it. A protection that cannot be used against a judge who deserves it is a protection with a cost, and the cost is that the only real discipline is the profession's opinion and the judge's own conscience. That is the price of independence, and article 124 pays it deliberately.

Quick revision

• 124(1): a Chief Justice of India and, until Parliament prescribes more, not more than seven other Judges.
• 124(2): appointment by the President by warrant under his hand and seal; office until sixty-five; resignation by writing to the President. The words about the NJAC are printed but were struck down on 16 October 2015, and the earlier text revives.
• 124(3): citizen, and five years a High Court Judge, or ten years a High Court advocate, or a distinguished jurist in the President's opinion.
• 124(4): removal only by order of the President after an address of each House, by a majority of the total membership and two-thirds of those present and voting, in the same session, on proved misbehaviour or incapacity.
• 124(7): a retired Supreme Court Judge shall not plead or act in any court or before any authority in India.
• 125: salary in the Second Schedule; nothing to be varied to his disadvantage after appointment.
• 126: acting Chief Justice appointed by the President. 127: ad hoc Judges. 128: retired Judges, including former Judges of the Federal Court.

Test yourself

1. State the procedure for removing a Judge of the Supreme Court. An order of the President passed after an address by each House of Parliament, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting, presented to the President in the same session, on the ground of proved misbehaviour or incapacity.

2. What are the qualifications for appointment? Citizenship of India, and either five years as a Judge of a High Court or of two or more such Courts in succession, or ten years as an advocate of a High Court or of two or more such Courts in succession, or being in the opinion of the President a distinguished jurist.

3. Why do the words "on the recommendation of the National Judicial Appointments Commission" appear in the printed article 124(2)? Because the Constitution (Ninety-ninth Amendment) Act 2014 inserted them, and the Supreme Court struck that amendment down on 16 October 2015. An amendment that is struck down is not repealed, so the printed text keeps the words with a footnote recording the judgment, while the law in force is the pre-amendment text, which the judgment held revives.

4. Name three provisions of articles 124 to 128 that protect judicial independence, and say what each does. Article 124(4), which makes removal possible only by an address of both Houses on proved misbehaviour or incapacity; article 125, which forbids any variation of a Judge's salary, privileges or pension to his disadvantage after appointment; and article 124(7), which forbids a retired Judge to plead or act in any court or before any authority in India.

5. Which provisions of the Government of India Act 1935 do articles 124 and 125 descend from? Section 200, which created a Federal Court of a Chief Justice of India and other judges appointed by warrant under the Royal Sign Manual holding office until sixty-five; and section 201, which forbade any variation of a judge's salary, leave or pension to his disadvantage after appointment.

Article 131: original jurisdiction

This is the article to know properly, because it is short, precise and easy to misstate.

Subject to the provisions of the Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute:

• between the Government of India and one or more States; or
• between the Government of India and any State or States on one side and one or more other States on the other; or
• between two or more States,

if and in so far as the dispute involves any question, whether of law or fact, on which the existence or extent of a legal right depends.

Four things to notice, and each is a way the article is commonly misdescribed.

"Original" means the case begins in the Supreme Court; there is no court below.

"To the exclusion of any other court" means no other court may entertain such a dispute. A State cannot sue the Union in a High Court over a matter within article 131.

The parties are governments only. A citizen cannot invoke article 131, however constitutional his grievance. His route is article 32 or article 226.

And the last clause is the real limit. The dispute must involve a question on which the existence or extent of a legal right depends. A political disagreement between the Union and a State, however sharp, is not within article 131 unless a legal right turns on it.

The proviso to article 131 excludes disputes arising out of certain pre-Constitution treaties, agreements, covenants, engagements, sanads and similar instruments.

Compare section 204 of the Government of India Act 1935, which is the same jurisdiction in the same words for the Federation, the Provinces and the Federated States, with a proviso about States. The drafters copied it.

Article 139A: transfer of cases

Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts, or before two or more High Courts, and the Supreme Court is satisfied, on its own motion or on an application by the Attorney-General or by a party, that such questions are substantial questions of general importance, it may withdraw the cases to itself and dispose of them; and it may then return a case to the High Court with a copy of its judgment on the questions of law.

Clause (2) allows the Supreme Court, if it thinks it expedient for the ends of justice, to transfer any case, appeal or other proceedings from one High Court to another.

Article 139A is not in the Act of 1935 and it is not an original jurisdiction in the article 131 sense. It is an administrative power to prevent the same question of general importance being decided differently in several High Courts at once, and it was inserted by the Forty-second Amendment.

A worked example

Four disputes, and the article that fits each.

A State says the Union has wrongly withheld a share of taxes to which the State is entitled under a Finance Commission award. The parties are the Union and a State, and a legal right is in question. Article 131, and no High Court may take it.

A State says the Union's policy on a subject is politically hostile to it. The parties fit, but no legal right depends on the question. Not within article 131.

A citizen says a Union law violates his fundamental rights. Article 131 has nothing to do with it: the parties are wrong. His remedies are article 32 and article 226.

The same question about the validity of a central Act is pending in the Supreme Court and in four High Courts. Article 139A: the Supreme Court may withdraw the cases to itself and decide the question once.

What beginners get wrong

"Article 131 is the Supreme Court's writ jurisdiction." It is not. The writ jurisdiction is article 32, and article 139 empowers Parliament to confer on the Supreme Court the power to issue writs for purposes other than fundamental rights. Article 131 is a jurisdiction over disputes between governments.

"A citizen can file a suit under article 131 against the Union." He cannot. The parties named are the Government of India and the States.

"Any dispute between the Union and a State is within article 131." Only if and so far as it involves a question on which the existence or extent of a legal right depends.

"Article 129 gives the Supreme Court the power to punish contempt of any court." It gives the power to punish contempt of itself. Article 215 does the same for a High Court, and contempt of subordinate courts is dealt with under the Contempt of Courts Act and article 227.

Limits and criticism

Article 131 is used less than a student might expect, and the reason is worth stating because it says something about the Indian federation.

The article requires a legal right to be in question. Most disputes between the Union and the States in practice are about money, appointments, policy or the exercise of discretion, and they are settled politically, through the Finance Commission, the Inter-State Council or negotiation. When they do become legal, they are more often brought under article 32 by an affected citizen or under article 226 in a High Court than by a State under article 131, because those routes are quicker and the pleadings are easier.

The result is that the Supreme Court's original jurisdiction, which on paper is its most distinctively federal function, is a small part of its work, while article 136 and article 32, which are discretionary and citizen-facing, are almost all of it. That imbalance is the subject of a continuing debate about what the Court is for, and a student who notices it in a Semester 3 answer is thinking like a lawyer.

Quick revision

• 129: court of record, with all the powers of such a court including the power to punish for contempt of itself. Compare art. 215 for High Courts.
• 130: sits in Delhi or elsewhere as the Chief Justice of India with the President's approval appoints. Compare s.203 of the Act of 1935.
• 131: original, exclusive jurisdiction in disputes between the Government of India and States or between States, if and in so far as the dispute involves a question on which the existence or extent of a legal right depends. Compare s.204 of the Act of 1935. Proviso for pre-Constitution treaties and covenants.
• 139A: withdrawal to itself of cases raising the same substantial question of general importance pending in the Supreme Court and High Courts, and transfer of cases between High Courts.

Test yourself

1. State the three classes of dispute within article 131 and the limiting condition. Disputes between the Government of India and one or more States; between the Government of India and any State or States on one side and one or more other States on the other; and between two or more States. The condition is that the dispute must involve a question, whether of law or fact, on which the existence or extent of a legal right depends.

2. Can a citizen invoke article 131? No. The parties named are the Government of India and the States. A citizen's constitutional remedies are article 32 in the Supreme Court and article 226 in a High Court.

3. What does it mean that the Supreme Court is a court of record? That its proceedings are enrolled as a permanent record and that it has all the powers of such a court, including the inherent power to punish for contempt of itself. Under article 129 the power comes from the Constitution, so Parliament cannot take it away.

4. Who decides where the Supreme Court sits? It sits in Delhi, and may sit in such other places as the Chief Justice of India appoints with the approval of the President.

5. What problem does article 139A solve? The same substantial question of general importance being litigated at once in the Supreme Court and several High Courts. The Supreme Court may withdraw the cases to itself, decide the question, and where appropriate return a case to the High Court with a copy of its judgment.

Article 133(2) allows any party appealing to urge as a ground that a substantial question of law as to the interpretation of the Constitution has been wrongly decided. Article 133(3) provides that, unless Parliament otherwise provides, no appeal lies from the judgment of a single Judge of a High Court.

Notice what is absent: a money limit. The Privy Council appeal and the appeal under the Letters Patent had turned on the value of the subject matter, as Module II describes. The Constitution as originally enacted retained a pecuniary test in article 133; the Thirtieth Amendment replaced it with the test of general importance. That change is worth naming, because it converts the civil appeal from a rich litigant's right into a question about the law.

Article 134: the criminal appeal

An appeal lies from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court:

• has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
• has withdrawn for trial before itself any case from a subordinate court and in that trial convicted the accused and sentenced him to death; or
• certifies under article 134A that the case is a fit one for appeal to the Supreme Court.

And clause (2) allows Parliament by law to confer further powers on the Supreme Court to entertain criminal appeals, subject to conditions Parliament may specify.

The two automatic cases share a feature: a death sentence imposed in circumstances where the accused has not previously had two concurrent decisions against him. That is the principle, and it is a good example of a rule that looks arbitrary until the reason is stated.

Article 134A: the certificate

Article 134A, inserted by the Forty-fourth Amendment, provides that every High Court, passing or making a judgment, decree, final order or sentence referred to in article 132(1), 133(1) or 134(1), may on its own motion, and shall, if an oral application is made by or on behalf of the aggrieved party immediately after the passing of the judgment, determine as soon as may be after it is passed whether a certificate may be given.

It is a procedural article and it repays a sentence in an answer, because it is what makes the certificate route workable: the application is oral, made at once, and the High Court must decide promptly.

Article 136: special leave

Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

Clause (2) excepts any judgment, determination, sentence or order passed or made by a court or tribunal constituted by or under any law relating to the Armed Forces.

Article 136 is the widest appellate provision in the Constitution, and four features are worth having.

"Notwithstanding anything in this Chapter": it is not subject to articles 132 to 135. No certificate is needed and no High Court can refuse it.

"Any cause or matter" and "any court or tribunal": it reaches decisions of tribunals as well as courts, and interlocutory as well as final orders.

"In its discretion": nobody has a right to special leave. It is a power in the Court, not a remedy of the litigant, and the Court has said many times that it will be exercised sparingly and only where there is a question of general public importance or a manifest injustice.

And its ancestry is the Privy Council. Module II explains that the Crown had an inherent right, not controlled by Acts of Parliament, to admit appeals from subjects beyond the seas, and that this produced the appeal by special leave. Article 136 is that prerogative rewritten as a power of an Indian court and widened, because the Privy Council's practice in criminal matters was much narrower than the text of article 136.

Article 138 completes the picture: the Supreme Court shall have such further jurisdiction and powers with respect to any matter in the Union List as Parliament may by law confer, and with respect to any matter as the Government of India and the Government of a State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction. Compare section 206 of the Act of 1935, which is the provision under which the Federal Court's jurisdiction was enlarged in 1948.

A worked example

Four appeals, and the article that carries each.

A High Court decides that a State Act is not repugnant to a Union law. A substantial question of law as to the interpretation of the Constitution: article 132, on a certificate under article 134A.

A High Court decides a contract appeal involving an important and unsettled point about limitation, worth Rs 40,000. No money limit applies. If the High Court certifies that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court: article 133. If it refuses, the party may apply for special leave under article 136.

A High Court reverses an acquittal and sentences the accused to death. Article 134(1)(a), and no certificate is needed.

A tribunal makes an order that no statute allows an appeal from. Article 136, if the Supreme Court in its discretion grants special leave.

Distinctions worth having straight

What beginners get wrong

"Article 136 is an appeal." It is a power to grant leave to appeal, exercised in the Court's discretion. There is no right to be heard under it.

"A civil appeal to the Supreme Court needs a certain amount of money in issue." Not since the Thirtieth Amendment. The test in article 133 is a substantial question of law of general importance which needs to be decided by the Supreme Court.

"An appeal under article 134 always requires a certificate." Not in the two cases in article 134(1)(a) and (b), where a High Court has reversed an acquittal and sentenced the accused to death, or has withdrawn a case to itself, convicted and sentenced him to death.

"Article 136 covers every decision in India." It excepts courts and tribunals constituted under any law relating to the Armed Forces.

Limits and criticism

The standing criticism of this chapter of the Constitution is about article 136 and it is worth putting fairly.

The article was designed as an extraordinary power, the Privy Council's special leave in Indian hands. In practice it has become the ordinary route to the Supreme Court, because a litigant refused a certificate under articles 132 to 134 can always apply for special leave, and because tribunal decisions reach the Court by no other route. The consequence is a very large volume of applications, a Court that sits in small benches to cope with it, and a diminished capacity for the constitutional work that articles 131 and 132 contemplate.

Against that, the width of article 136 is also what makes the Supreme Court accessible: a litigant whose case is unusual, or whose forum is a tribunal, has somewhere to go. Whether the balance is right is a live question, and a student who states the tension has said what is worth saying.

Quick revision

• 132: any proceeding, on a certificate that it involves a substantial question of law as to the interpretation of the Constitution. Compare s.205 of the Act of 1935; article 147 extends the phrase to the Act of 1935 itself.
• 133: civil, on a certificate of a substantial question of law of general importance which needs to be decided by the Supreme Court. No money limit since the Thirtieth Amendment. No appeal from a single Judge unless Parliament provides.
• 134: criminal: an acquittal reversed with a death sentence; a case withdrawn to the High Court ending in conviction and a death sentence; or a certificate that it is a fit case. Parliament may confer more.
• 134A: the High Court may certify on its own motion and shall consider an oral application made immediately after judgment.
• 136: special leave, in the Court's discretion, from any court or tribunal in India, except those under Armed Forces law. Descended from the Privy Council's special leave.
• 138: Parliament may enlarge the jurisdiction in Union List matters, and the Union and a State may by special agreement confer more.

Test yourself

1. Distinguish articles 132, 133 and 134 in one sentence each. Article 132 gives an appeal in any kind of proceeding on a certificate that a substantial question of law as to the interpretation of the Constitution is involved; article 133 gives an appeal in a civil proceeding on a certificate that a substantial question of law of general importance needs to be decided by the Supreme Court; article 134 gives an appeal in a criminal proceeding in the two death-sentence cases automatically and otherwise on a certificate that the case is fit for appeal.

2. What is special about article 136? It operates notwithstanding anything else in the Chapter, needs no certificate, reaches any judgment, decree, determination, sentence or order in any cause or matter of any court or tribunal in India except those under Armed Forces law, and is entirely in the Supreme Court's discretion, so no litigant has a right to it.

3. What did the Thirtieth Amendment change? It removed the pecuniary test from article 133 and substituted the test of a substantial question of law of general importance which in the High Court's opinion needs to be decided by the Supreme Court.

4. Where does article 136 come from historically? From the Crown's prerogative to admit appeals from subjects beyond the seas, which produced the Privy Council's appeal by special leave. Article 136 restates it as a power of an Indian court and in wider terms, particularly in criminal matters.

5. What does article 134A do? It requires a High Court, when passing a judgment of the kind mentioned in articles 132(1), 133(1) or 134(1), to determine as soon as may be whether a certificate should be given, on its own motion if it thinks fit and necessarily if an oral application is made by or on behalf of the aggrieved party immediately after the judgment.

(2) Subject to any law made by Parliament, the Supreme Court shall, as respects the whole of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of documents, or the investigation or punishment of any contempt of itself.

Article 142(1) is the most discussed power in the Constitution, and a Semester 3 answer should say three things about it.

It is a power to fashion a remedy, exercisable in a cause pending before the Court, so that the Court is not confined to the reliefs an ordinary statute provides.

It is not a power to legislate, and the Court has repeatedly said that it will not use article 142 to do something a statute expressly forbids.

And it exists because the framers had watched a system in which a court could be right and powerless. Module I is full of orders that could not be executed, and section 210 of the Act of 1935 had already provided that all authorities should act in aid of the Federal Court and that its orders should be enforceable everywhere. Article 142(1)'s enforceability clause and article 144 together are that provision, strengthened.

Article 144: all authorities in aid

All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

That is section 210(1) of the Government of India Act 1935 word for word, and it is the answer to the Cossijurah case a hundred and seventy years later. In 1780 the Government of Bengal sent sepoys to arrest the sheriff who was executing the Supreme Court's process. Article 144 makes that a constitutional impossibility: every civil and judicial authority in India is bound to assist.

Article 143: the advisory jurisdiction

(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court, he may refer the question to the Court, which may, after such hearing as it thinks fit, report to the President its opinion.

(2) deals with references about certain pre-Constitution treaties and agreements excluded from article 131, and there the Court shall report its opinion.

Three features distinguish it from ordinary jurisdiction and each is worth a line.

The Court reports an opinion; it does not decide a case. There are no parties in the ordinary sense.

Under clause (1) the Court may decline to answer, and it has declined; under clause (2) it shall report.

And the opinion is not a judgment, so it does not attract article 141 in the same way as a decision in a lis, although it is treated with the greatest respect and is followed in practice.

This is section 213 of the Act of 1935, with the President for the Governor-General.

Article 137: review

Subject to any law made by Parliament and to rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

The grounds on which review is granted are narrow, and the Supreme Court Rules confine it substantially to the grounds on which a civil court may review a decree: discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason. It exists because a final court has no court above it, so the only correction available is its own.

Article 139: writs, for other purposes

Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32.

Read the last words. The Supreme Court's writ power for fundamental rights comes from article 32(2) and needs no statute. Article 139 is about writs for other purposes, and those depend on Parliament conferring the power. The High Courts, under article 226, need no such statute: their writ power extends to fundamental rights and for any other purpose. That difference between article 32 and article 226 is the subject of two later chapters and is the most examinable comparison in Module III.

Articles 140, 145, 146 and 147

140: Parliament may by law confer supplemental powers on the Supreme Court, not inconsistent with the Constitution, to enable it more effectively to exercise its jurisdiction. Compare section 215 of the Act of 1935.

145: the Supreme Court may, with the approval of the President and subject to any law made by Parliament, make rules of court regulating generally the practice and procedure of the Court, including rules as to persons practising before it, as to procedure for appeals, and as to costs and fees. Clause (3) provides for the minimum number of Judges who are to sit for the purpose of deciding a case involving a substantial question of law as to the interpretation of the Constitution, or for hearing a reference under article 143. Compare section 214 of the Act of 1935.

146: appointments of the officers and servants of the Supreme Court are made by the Chief Justice of India or such other Judge or officer as he directs; their conditions of service are prescribed by rules made by the Chief Justice with the President's approval where they involve expenditure; and the administrative expenses of the Court, including all salaries, allowances and pensions payable to or in respect of its officers and servants, are charged upon the Consolidated Fund of India, fees taken by the Court forming part of that Fund.

The last part matters for the next chapters. Charged expenditure is not submitted to the vote of Parliament. Section 216 of the Act of 1935 had done the same for the Federal Court, and section 228 for the High Courts. It is a financial guarantee of independence, and a student should list it with the guarantees in the chapter on independence.

147: in this Chapter and in Chapter V of Part VI, references to a substantial question of law as to the interpretation of this Constitution include references to a substantial question of law as to the interpretation of the Government of India Act 1935, including any enactment amending or supplementing it, and of any Order in Council or order made under it, or of the Indian Independence Act 1947 or of any order made under that Act.

Article 147 is the reason this book exists. The Constitution says, in terms, that a constitutional question in India may be a question about the Act of 1935 or about the Indian Independence Act 1947, and it is the clearest possible statement that the constitutional history in Module IV is not antiquarian.

A worked example

The Supreme Court, hearing an appeal, finds that the statute gives no adequate remedy and that a High Court in another State has taken the opposite view.

• It may withdraw the other cases to itself under article 139A and settle the question.
• It may pass whatever order is needed for complete justice under article 142(1), and the order is enforceable throughout India.
• Its statement of the law binds every court in India under article 141.
• Every civil and judicial authority is bound to act in aid of it under article 144.
• If the Court later concludes it was wrong, it may review under article 137, or a larger bench may reconsider the point.

Now compare the Supreme Court at Calcutta in 1780, which could give a judgment and watch sepoys stop the sheriff enforcing it. The whole of Module III is the difference between those two lists.

What beginners get wrong

"Article 141 binds the Supreme Court itself." It binds all courts within the territory of India; the Court may depart from its own earlier decisions, ordinarily through a larger bench, and article 137 gives it a power of review.

"Article 142 lets the Supreme Court do anything." It empowers the Court to do what is necessary for complete justice in a cause pending before it. It is not a legislative power and the Court has declined to use it against an express statutory prohibition.

"The Supreme Court's writ jurisdiction comes from article 139." For fundamental rights it comes from article 32(2). Article 139 is about writs for other purposes and requires a law made by Parliament.

"An advisory opinion under article 143 is a binding judgment." It is a report of the Court's opinion to the President. Under clause (1) the Court may decline to answer; under clause (2) it shall report.

Limits and criticism

Two of these articles attract the standing criticism of the Supreme Court and it is worth stating both without taking a side.

Article 142 is said to have been used to do things that belong to the legislature or the executive, on the footing that complete justice required them. Defenders answer that a court which can identify a wrong and cannot remedy it is the court Module I describes, and that the article exists precisely to prevent that.

Article 141 produces a different problem: because everything the Supreme Court says binds every court in India, and because the Court sits in many small benches, the volume of binding law is enormous and not always consistent. The remedies within the system are article 137, larger benches, and article 139A, and a student who names those three has answered the criticism rather than merely repeating it.

Quick revision

• 137: review of its own judgments, on narrow grounds.
• 139: Parliament may confer power to issue writs for purposes other than article 32(2).
• 140: Parliament may confer supplemental powers.
• 141: the law declared by the Supreme Court is binding on all courts in India. From s.212 of the Act of 1935, minus the Privy Council.
• 142: complete justice in a pending cause, enforceable throughout India; and powers as to attendance, discovery and contempt of itself.
• 143: the President may refer a question of law or fact of public importance; the Court may report under clause (1) and shall under clause (2). From s.213 of the Act of 1935.
• 144: all civil and judicial authorities shall act in aid of the Supreme Court. From s.210 of the Act of 1935.
• 145: rules of court, and the minimum bench for constitutional questions and article 143 references.
• 146: officers appointed by the Chief Justice; expenses charged on the Consolidated Fund of India.
• 147: a constitutional question includes a question on the Government of India Act 1935 and the Indian Independence Act 1947.

Test yourself

1. What exactly does article 141 make binding, and on whom? The law declared by the Supreme Court, on all courts within the territory of India. What binds is the proposition of law laid down, not the result between the parties, and the Supreme Court itself is not bound by its own earlier decisions.

2. State the two limits on article 142 that the Supreme Court itself observes. That the power is exercisable for doing complete justice in a cause or matter pending before the Court, and that it is not a power to legislate or to act against an express statutory prohibition.

3. Distinguish article 32(2) from article 139. Article 32(2) gives the Supreme Court power to issue writs for the enforcement of fundamental rights, and it needs no statute. Article 139 allows Parliament by law to confer power to issue writs for purposes other than those in article 32(2). A High Court's power under article 226 covers both without any statute.

4. What is the status of an opinion given under article 143? It is a report of the Court's opinion to the President, not a judgment between parties. Under clause (1) the Court may decline to answer; under clause (2) it is bound to report.

5. What does article 147 provide, and why does it matter to this paper? That references to a substantial question of law as to the interpretation of the Constitution include references to questions about the Government of India Act 1935, enactments amending it, orders under it, and the Indian Independence Act 1947. It matters because it makes the constitutional history of Module IV part of the working law of the Supreme Court rather than background.