Kamaluddin's Case, 1775

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.