The Judicial Committee of the Privy Council: What It Actually Was

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.