The Regulating Act 1773: Rule-Making, Presents and Accountability

Section 37: transmission and disallowance

Section 37 required the Governor-General and Council, from time to time, to transmit copies of all such rules, ordinances and regulations to one of His Majesty's principal Secretaries of State. His Majesty might, from time to time as he thought necessary, signify to the Company under his sign manual his disapprobation and disallowance of any of them; and from the time such disallowance was duly registered and published in the Supreme Court at Fort William, the rules disallowed became null and void. If the Crown did not disallow within two years of the making of the rules, they stood.

A Secretary of State is a minister of the Crown; the sign manual is the sovereign's own signature, the formal instrument by which such an act is authenticated; disallowance is the annulment of a law by a superior authority, as distinct from a veto, which prevents it coming into force at all.

Learn this pair, section 36 and section 37, together, because they are the earliest form of a mechanism that runs through the whole of Module IV. Indian legislation is subordinate: it is made under a power, limited by repugnancy, and subject to disallowance from England. The Charter Act of 1833, the Indian Councils Act 1861 and the Government of India Acts all repeat the pattern with different names, and it does not finally disappear until 1947.

Section 23: presents and private trade

Section 23 provides that no Governor-General, no member of the Council, and no Chief Justice or judge of the Supreme Court shall, directly or indirectly, by themselves or by any other person for their use or on their behalf, accept, receive or take, from any person, in any manner or on any account whatsoever, any present, gift, donation, gratuity or reward, pecuniary or otherwise, or any promise or engagement for one; and that none of them shall carry on, be concerned in, or have any dealing or transaction by way of traffic or commerce of any kind whatsoever, for his own benefit or for anybody else's, the trade and commerce of the Company alone excepted, any usage or custom to the contrary notwithstanding.

The two prohibitions answer the two scandals that had brought the Company to Parliament's attention: the fortunes made from presents given by Indian rulers to the Company's servants, and the private trade carried on by men who were also the government and could give themselves advantages no competitor could match.

Section 23 is not an antiquarian detail. It is the section under which Maharaja Nandkumar accused Warren Hastings in March 1775 of having taken presents, and that accusation is where the most famous proceeding in this paper begins.

Section 17: the persons of the rulers and the judges

Section 17 provides that nothing in the Act shall extend to subject the person of the Governor-General, of any Councillor, or of the Chief Justice or judges, to be arrested or imprisoned upon any action, suit or proceeding in the Supreme Court.

It is a personal immunity from arrest and imprisonment, not an immunity from being sued. A Councillor could be sued, and judgment could go against him; what could not be done was to take his body. Put section 15 and section 17 side by side and the protection given to the Government becomes clear and also clearly incomplete: no criminal indictment except for treason or felony, and no arrest, but civil liability intact. That is precisely the gap the Cossijurah plaintiff used.

Sections 39 and 40: trial in England

Section 39 provides for an offence committed in India by a Governor-General, President, Governor or member of Council of any of the Company's settlements, or by the Chief Justice or any judge of the Supreme Court.

Section 40 explains why it was needed. It recites that the provisions made by former laws for hearing and determining in England offences committed in India had been found ineffectual, by reason of the difficulty of proving in this Kingdom matters done there, and enacts that in all cases of indictments or informations laid or exhibited in the Court of King's Bench for misdemeanours or offences committed in India, special provision might be made for the trial.

The Court of King's Bench was the principal common law court in England. The point of these two sections is accountability of a particular kind: the highest officers in India were to be answerable, but answerable at Westminster, not in Calcutta. Section 15 had taken them out of the Supreme Court's criminal jurisdiction, and sections 39 and 40 supply where they were to be tried instead.

An answer that puts sections 15, 39 and 40 together as a single scheme, immunity in India balanced by liability in England, is the answer that shows understanding rather than recall.

A worked example

The Council of Fort William resolves in 1777 to make a regulation fixing the fees of pleaders in the provincial courts.

1. Is there power? Yes, under section 36: it is a rule for the good order and civil government of the settlement and its subordinate places.
2. Is it within the limit? It must not be repugnant to the laws of the realm, and a scale of fees is not.
3. Is it in force? Not yet. Under section 36 it is of no force until registered and published in the Supreme Court. If the Court declines to register it, it is not law.
4. What next? Under section 37 a copy goes to a Secretary of State. If the Crown signifies disallowance under the sign manual, and the disallowance is registered and published at Fort William, the regulation becomes null and void. If nothing is done within two years, it stands.
5. And if a Councillor takes 500 rupees from a pleader to have his name included? That is a present within section 23. He cannot be indicted for it in the Supreme Court, because of section 15, unless it is treason or felony; he cannot be arrested, because of section 17; but he may be prosecuted in the Court of King's Bench in England under sections 39 and 40.

Distinctions worth having straight

What beginners get wrong

"Section 36 made the Governor-General in Council the legislature for India." It made him a rule-making authority for the settlement of Fort William and its subordinate places, limited by repugnancy and dependent on registration in a court. A legislature for the whole of British India arrives with the Charter Act of 1833.

"The Supreme Court could veto legislation." In substance, yes, and that is the point worth making, but the mechanism was registration, not veto. A regulation not registered simply never became valid.

"Section 23 was a dead letter." It was the section Nandkumar invoked against Hastings, and the accusation was received by the Council. Whatever one thinks of what followed, the section was used.

Limits and criticism

Two criticisms are worth making and both are structural rather than moral.

The registration requirement put a court in the legislative process. A court exists to decide disputes about laws, and cannot do that impartially if it has already had to approve or refuse them. The Settlement Act of 1781 removed the requirement for regulations affecting the provincial courts, which is an admission that it had been a mistake.

The accountability provisions were unenforceable in practice. Section 40 itself says that trying Indian offences in England had already failed once because of the difficulty of proving in England what had been done in India, and it is not obvious that the new provisions cured it. An officer who could not be tried in Calcutta and could not realistically be convicted in London was, for most practical purposes, not triable at all. That gap is the reason impeachment, a political rather than a judicial remedy, was the route eventually used against both Hastings and Impey.

Quick revision

• s.17: no arrest or imprisonment of the Governor-General, Councillors, Chief Justice or judges on any proceeding in the Court. Not an immunity from suit.
• s.23: no presents and no private trade for the same officers; the Company's own trade excepted. The section Nandkumar invoked against Hastings.
• s.36: power to make rules, ordinances and regulations, not repugnant to the laws of the realm, with reasonable fines; void until registered and published in the Supreme Court.
• s.37: copies to a Secretary of State; the Crown may disallow under the sign manual, effective when registered at Fort William; two years' silence validates.
• ss.39 and 40: offences in India by the highest officers triable in the Court of King's Bench, because trial in England under former laws had proved ineffectual.

Test yourself

1. Why could the Governor-General in Council not make a valid regulation by itself? Because section 36 provided that its rules, ordinances and regulations were of no force until duly registered and published in the Supreme Court. Registration by the Court was a condition of validity.

2. What happened to a regulation that London did not like? Under section 37, copies went to a Secretary of State; the Crown could signify disallowance under the sign manual, and once that disallowance was registered and published at Fort William the regulation was null and void. If the Crown did not act within two years, the regulation stood.

3. What did section 23 prohibit, and to whom did it apply? The acceptance of any present, gift, donation, gratuity or reward, and the carrying on of any private trade or commerce, by the Governor-General, any member of Council, and the Chief Justice and judges of the Supreme Court. Only the Company's own trade was excepted.

4. How do sections 15, 17, 39 and 40 fit together? Sections 15 and 17 keep the Governor-General, the Councillors and the judges out of the Supreme Court's criminal process and free from arrest; sections 39 and 40 supply the forum where they were instead to be tried, the Court of King's Bench in England. Immunity in India was balanced by liability at Westminster.

5. Why did the Settlement Act of 1781 have to change section 36? Because the regulations the Council made for the provincial courts in 1780 were not registered in the Supreme Court and so were not binding on it, and no settlement of the quarrel was possible while the Court had to approve the rules by which the rival courts were constituted. The Act of 1781 empowered the Council to frame regulations for the provincial courts without reference to the Supreme Court.