What the Settlement of 1781 Left Behind

The Sadar Diwani Adalat itself was finally established by Act of Parliament in 1781, being constituted a court of record by 21 Geo. III c. 70, section 71. It had not been established by royal charter, so it remained one of the Company's courts, but it was thereafter distinguished from the ordinary Company courts because it traced its establishment to the recognition and sanction of Parliament.

What was left standing: the dual system

After 1781 India had two complete systems of courts in the same territory, and it is worth setting them out side by side because Module II is the story of how they were merged.

Two systems, two laws, two appellate ladders, and no rule saying which prevailed where they met. That is the dual judicial system, and MU's Module II names it in its first topic.

The struggle that started immediately

Do not imagine that separating revenue from justice ended the quarrelling. It moved it.

Within a few months of the separation of functions in 1780, the Governor-General recorded in a minute that "the institution of the new Courts of Dewanny Adawlut has already given occasion to very troublesome and alarming competition between them and the provincial Councils".

The rival claims of the revenue authorities and the judicial officers to exercise jurisdiction were destined, in Cowell's phrase, to a long antagonism and to varying success. It is a smaller conflict than the civil war between the Supreme Court and the Supreme Council, and it lasted much longer: the jurisdictions were united again by Cornwallis in 1787, separated again in 1793, united a third time in 1831, and the question was still being fought over in 1859. The next four chapters are the first two rounds of it.

A worked example

A dispute in 1785 between a zamindar of Burdwan and his tenant about rent.

• Which court? Rent is a revenue matter, reserved to the Provincial Council or the Collector. Not the Diwani Adalat, and certainly not the Supreme Court, which lost revenue matters in 1781.
• Change it to a dispute about the inheritance of the zamindari. Now it is the Diwani Adalat of the district, applying Hindu law if the parties are Hindus, with appeal to the Sadar Diwani Adalat.
• Change it again: the zamindar sues an English indigo planter living in Calcutta for trespass. Now the defendant is a British subject in a Presidency Town, and the Supreme Court has jurisdiction, applying English law to a trespass.
• And if the planter counterclaims for a debt against the zamindar? He must establish that the zamindar is within section 14, and if the zamindar pleads to the jurisdiction, the plea will ordinarily be sustained.

One district, one pair of litigants, and the forum and the law both change with the subject matter and the identity of the parties. A student who can work that example can answer almost anything set on the dual system.

What beginners get wrong

"After 1781 there was peace." Between the Supreme Court and the Council, largely yes. Between the civil courts and the revenue authorities, the fight had only just begun, and it ran for eighty years.

"The Sadar Diwani Adalat was a royal court after 1781." It was not established by royal charter and remained a Company court. What Parliament did was recognise it and constitute it a court of record.

"Impey was dismissed for taking the Sadar Diwani Adalat office." He was impeached and acquitted. The Directors ordered the arrangement to be undone in 1782 and the Governor-General in Council resumed the superintendence of the Court.

"The dual system meant Indians had no access to the Supreme Court." They had access where the Court had jurisdiction, which after 1781 mainly meant residents of Calcutta and persons who submitted to it. What they did not have was any choice of law: the Act of 1781 told the Court to apply their own law in the matters it named.

Limits and criticism

The settlement of 1781 is usually described as a success, and by the standard of stopping a constitutional crisis it was. Judged by any other standard it postponed the problem for eighty years.

A country with two systems of courts, two systems of law, and no rule of priority between them will produce conflicting decisions about the same land, the same debt and the same family, and it did. That is the subject of the first chapters of Module II, and it is why the Law Commissioners eventually recommended amalgamation and Parliament carried it out in 1861.

The deeper point is the one Cowell makes about both Acts. Parliament twice legislated about courts in India without saying what the relation of the Indian territories to the Crown was, or who among the inhabitants were subjects. Institutions can be built on a silence like that, but they cannot be reconciled to each other, because the question of which prevails is the question that was never answered.

Quick revision

• 1780: the six Provincial Councils confined to revenue; eighteen district Diwani Adalats created, independent of them, for inheritance, real property, mercantile and personal property disputes; revenue and rent reserved to the Councils and later the Collectors; appeal to the Sadar Diwani Adalat.
• The Regulations for those courts were drawn by Sir Elijah Impey; the Chief Justice was made Judge of the Sadar Diwani Adalat in 1780, holding the office and salary at the Council's pleasure; the Directors ordered it undone in 1782.
• 1781: the Sadar Diwani Adalat constituted a court of record by 21 Geo. III c. 70, s.71.
• What remained: the dual judicial system, King's courts and English law in the Presidency Towns, Company courts and Hindu, Muslim and Regulation law in the mofussil, with separate appeals.
• The new quarrel: civil courts against revenue authorities, beginning within months and lasting to 1859.

Test yourself

1. What courts did the reorganisation of 1780 create, and how many? Eighteen district Courts of Diwani Adalat, independent of the six Provincial Councils, with jurisdiction over inheritance to zamindaries and talukdaries and other real property, mercantile disputes and personal property, revenue and rent being reserved to the Councils. The ultimate appeal lay to the Sadar Diwani Adalat.

2. What office did Sir Elijah Impey accept in 1780, and on what terms? Judge of the Sadar Diwani Adalat, vested with all its powers, the Governor-General and Council ceasing to belong to it, but with the express stipulation that he should hold the office and its salary at their pleasure. He drew up the regulations for the civil courts, which were incorporated in the revised Code of 1781. The Directors ordered the arrangement undone in 1782.

3. Describe the dual judicial system in four points. Two sets of courts in the same territory: King's courts created by charter in the Presidency Towns with English judges applying English law, and Company courts in the mofussil staffed by the Company's servants applying Hindu and Muslim law and the Regulations; separate appellate ladders, to the King in Council and to His Majesty above £5,000 respectively; and no rule of priority where the two met.

4. What new conflict began in 1780, and how long did it last? The competition between the new civil courts and the revenue authorities, which the Governor-General noticed within months of the separation. It ran through the reunion of the jurisdictions by Cornwallis in 1787, the second separation in 1793, the third reunion in 1831, and was still alive when Act X of 1859 was passed.