Lord Cornwallis: the Judicial Plan of 1793 and the Cornwallis Code

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.