The Rule of Law Before Independence

Testing British India against the first limb

Where it holds. By the end of the period there was a great deal of regular law: the Codes, the Regulations, the Acts of the Indian legislature, published, printed and translated, with the ground of each regulation prefixed since 1793 and made a statutory requirement in 1797. There were courts, an appellate hierarchy and, from 1861, a High Court in each Presidency whose decisions were reported.

Where it fails. Three failures can be proved from the instruments themselves, and a good answer proves rather than asserts.

Indemnity. The Settlement Act of 1781 indemnified the Governor-General, the Council, the Advocate-General and everybody acting under their orders against any action, suit or prosecution for their resistance to the process of the Supreme Court between 1 January 1779 and 1 January 1780, reciting that in those hostilities "many things have been done not justifiable by the strict rule of the law". A statute that retrospectively excuses a government for disobeying a court is the plainest possible departure from the first limb.

Removal of matters from the courts. The same Act took revenue out of the Supreme Court's jurisdiction, and the exclusion survived through the letters patent, section 106(2) of the Government of India Act 1915 and section 226 of the Government of India Act 1935, which added that even the legislature could not alter it without the Governor's discretionary sanction. Revenue was, for a hundred and sixty-nine years, the largest single field of dispute between the State and the subject in India, and it was placed beyond the original jurisdiction of the King's courts.

Protection of officers. The Settlement Act also provided 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. That is defensible as judicial immunity, and it was enacted in the aftermath of Dutt v. Hosea and the Patna case, which is to say in the aftermath of officers being made liable.

Testing it against the second limb

Equality before the law is where British India departs most visibly, and the evidence is again in the statutes.

Under the Regulating Act, sections 15 and 17 took the Governor-General and the Councillors out of the Supreme Court's criminal process except for treason or felony and protected their persons from arrest; sections 39 and 40 made them triable in the Court of King's Bench in England. That is a separate forum for a class of persons, defined by office.

In the criminal law, European British subjects were for most of the nineteenth century entitled to be tried by particular courts and in particular ways not available to Indians. Cowell's own summary of the position in his day is precise: by the 1880s Englishmen and Indians were subject in civil matters to the same courts and the same procedure, and in criminal matters to the same substantive law and the same appellate authority, but in a great degree to different courts for purposes of commitment and trial, the Criminal Procedure Code of 1872 having advanced towards uniformity while preserving to European British subjects such privileges as policy and safety seemed to require.

The Ilbert Bill controversy of 1883, which proposed to allow Indian judges in the mofussil to try European British subjects, and which was withdrawn in the face of organised opposition and passed only in a diluted form, is the standard illustration and belongs in an answer. It shows that the inequality was understood at the time to be an inequality, and defended as such.

Against that must be set the other half of the record, and a fair answer gives it. Section 87 of the Charter Act of 1833 provided that no native of India, nor any natural-born subject of His Majesty, should by reason only of his religion, place of birth, descent or colour be disabled from holding any place, office or employment under the Company. And section 2 of the Indian High Courts Act 1861 opened the High Court bench to persons who had held judicial office not inferior to Principal Sadar Ameen and to pleaders of ten years' standing, which are the two routes by which Indians reached it.

So the record is not uniform: the same century produced both a statutory guarantee against disqualification by race and a criminal procedure that distinguished by race.

Testing it against the third limb

Dicey's third limb does not fit India at all, and saying so plainly is the right answer.

In England the constitution was the residue of judicial decisions about the rights of private persons. In India the constitution was, at every stage in this book, an Act of the British Parliament or a charter of the Crown: the Regulating Act, the Settlement Act, the Charter Acts, the Indian Councils Acts, the Government of India Acts. Indian courts interpreted those instruments; they did not generate the constitution from private-law decisions.

And the legislature that made those instruments was one in which Indians were not represented at all until 1861, and then only by nomination, as Module IV sets out.

The other side: what the courts did achieve

An answer that says only that British India lacked the rule of law will be a weak answer, because the record contains the opposite as well, and this book has recorded it.

The Supreme Court restrained real abuses. Kamaluddin was admitted to bail on a return that would have been false had it stated the power claimed; Sarup Chand was released from a confinement ordered by a board that included his own debtor; the Patna Council was made to pay three lakhs of rupees to a widow it had driven from her house, and Warren Hastings himself criticised its officers' irregularity.

The Company's own courts were held to be courts, and their judges protected from suit for judicial acts unless corrupt, which is itself a rule-of-law proposition.

Cornwallis's Regulation II of 1793 contains as clear a statement of the principle as any modern constitution: that if the regulations for collecting revenue are infringed the revenue officers must themselves be the aggressors, that individuals wronged by them in one capacity can never hope for redress from them in another, that Government must divest itself of the power of infringing in its executive capacity the rights it has conferred in its legislative capacity, and that the Collectors must be rendered amenable to the courts and personally liable for every exaction beyond what they are authorised to demand.

And from 1801 the Sadar courts sat separate from the executive, from 1861 there was a High Court in each Presidency with judges the Company had not appointed, and from 1935 a High Court judge had a retiring age instead of holding office at pleasure.

A worked example: how to answer the question

"Discuss the rule of law in India before independence."

1. State Dicey's three limbs, in one sentence each.
2. Test the first: regular published law and a court hierarchy, against the indemnity of 1781, the exclusion of revenue from 1781 to 1950, and the protection of officers.
3. Test the second: sections 15, 17, 39 and 40 of the Regulating Act, the separate treatment of European British subjects in criminal trials, and the Ilbert Bill; then section 87 of the Charter Act of 1833 and section 2 of the Act of 1861 on the other side.
4. Test the third: the constitution of India was a statute of a Parliament in which Indians were not represented, not a residue of judicial decisions.
5. Give the counter-evidence: the seven proceedings, the position the Supreme Court actually took by 1779, Regulation II of 1793, and the growth of judicial independence to 1935.
6. Conclude: British India had law, courts and a developing judicial independence, and lacked the two things the rule of law finally requires, equality of all persons before the ordinary law and a government that cannot excuse itself by statute from the consequences of breaking it.

What beginners get wrong

"There was no rule of law in British India." Too broad, and it throws away the marks in the second half of the answer. Say which limb fails, and prove it from an instrument.

"Dicey's rule of law was applied in India." Dicey wrote about England and expressly contrasted the English position with systems that treated officials differently. The interest of the topic is precisely that his second limb did not hold in India.

"The Ilbert Bill was passed as introduced." It was withdrawn in its original form after organised opposition and enacted in a diluted form. That fact is the point of the illustration.

Limits and criticism

Two cautions for a student writing this topic.

Do not judge 1780 by 1950. The question is not whether British India met the standards of a modern constitution but whether it met the standards it professed, and the honest answer is that it professed the rule of law in Regulation II of 1793 and in section 87 of the Charter Act of 1833 and did not consistently deliver it.

And do not read the failures as accidents. The indemnity of 1781, the exclusion of revenue and the separate criminal procedure for European British subjects were deliberate legislative choices, made after debate, and each was defended at the time on grounds of necessity or of policy. That is what makes them evidence about the rule of law rather than administrative untidiness.

Quick revision

• Dicey's three limbs: supremacy of regular law against arbitrary power; equality before the ordinary law and the ordinary courts; and a constitution that is the result of judicial decisions about private rights.
• La legalite is French for legality, the principle that the state may act only under and according to law: another name for Dicey's first limb. Natural justice: nemo judex in causa sua (no man a judge in his own cause) and audi alteram partem (hear the other side).
• Against limb one: the indemnity in the Settlement Act 1781 for resisting the Court's process, reciting that things had been done "not justifiable by the strict rule of the law"; the exclusion of revenue from 1781 to 1950; the protection of provincial judicial officers from suit.
• Against limb two: ss.15, 17, 39 and 40 of the Regulating Act; the separate courts for commitment and trial of European British subjects; the Ilbert Bill of 1883. For it: s.87 of the Charter Act 1833 and s.2 of the Act of 1861.
• Against limb three: the Indian constitution was a statute of a Parliament in which Indians were not represented.
• For the record on the other side: the seven proceedings of Module I; the Court's actual position by 1779; Regulation II of 1793; the separation of the Sadar courts in 1801; the High Courts in 1861; the retiring age in 1935.

Test yourself

1. State Dicey's three meanings of the rule of law. The absolute supremacy of regular law as against arbitrary power, so that no one is punished except for a distinct breach of law established before the ordinary courts; the equality of all persons, whatever their rank, before the ordinary law administered by the ordinary tribunals; and a constitution whose general principles are the result of judicial decisions determining the rights of private persons.

2. Give one statutory provision that contradicts each of the first two limbs. For the first, the indemnity in the Settlement Act 1781, which retrospectively excused the Governor-General, the Council and the Advocate-General for resisting the Supreme Court's process, reciting that many things had been done not justifiable by the strict rule of the law. For the second, sections 15, 17, 39 and 40 of the Regulating Act, which took the Governor-General and Councillors out of the Supreme Court's criminal process and made them triable instead in the Court of King's Bench in England.

3. What was the position of European British subjects in criminal trials by the 1880s? Subject to the same substantive law and the same appellate authority as Indians, but in a great degree to different courts for the purposes of commitment and trial, the Criminal Procedure Code of 1872 having moved towards uniformity while preserving such privileges as policy and safety were thought to require.

4. Give two provisions that support the rule of law in British India. Section 87 of the Charter Act of 1833, which forbade disqualification from office by reason only of religion, place of birth, descent or colour; and the preamble to Regulation II of 1793, which required the revenue officers to be deprived of judicial powers, made the Collectors amenable to the courts and personally liable for exactions, and said that Government must divest itself of the power of infringing in its executive capacity the rights it had conferred in its legislative capacity.

5. Why does Dicey's third limb not fit India at all? Because the Indian constitution at every stage was an Act of the British Parliament or a charter of the Crown rather than a residue of judicial decisions about the rights of private persons, and the Parliament that made those instruments contained no Indian representation.