Appeals to the Privy Council, 1726 to 1860

• 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.