What the Seven Cases Add Up To

The Court's stated position being more moderate than its reputation. By 1779, on the record of Touchet's Committee, the Court had held that the Company's courts were courts of justice, that their judges were not liable for judicial acts unless corrupt, that revenue debtors could be held to bail, and only that they could not be imprisoned without bail to secure a disputed sum. Dutt v. Hosea is the case in which that question was squarely raised, and the Council itself asked for it to be decided. And on the question everybody remembers, jurisdiction over zamindars, Bogle's own report of November 1778 records that their pleas to the jurisdiction had always been sustained.

The system with no umpire. Cossijurah is not a case about law at all. It is what happens when two authorities disagree and neither can be overruled. And the trial of Nandkumar is the same defect on the criminal side: a capital conviction, no appeal, and the only check the judges' own power to respite, which they held and did not exercise.

The Council's case, put at its highest

A good answer does not treat the Company's servants as villains, and there is a serious case for them.

The Court was staffed by men who had arrived from England and knew nothing of revenue administration, of the languages, or of the customs of the country, and it applied English process to people who, in the words of a Burdwan diwan quoted at the time, threatened others with habeas corpus and damages without any of them being able to say what a habeas corpus was, or what damages were, or what a writ or a summons was.

Its process was ruinous even to those who won: a talukdar might be ruined by the expense of pleading to the jurisdiction though he prevailed, and in one action in which Rs 400 was recovered the costs exceeded Rs 1,600.

And its interventions did fall on the revenue, which was the Company's whole business in Bengal and, at that date, the security for the Company's solvency.

The answer to all of that is Stephen's, and it is decisive: the way to correct a court that has exceeded its jurisdiction is to obtain a decision and appeal from it. That way was open for five years and was never taken.

The Court's case, put at its highest

Equally, an answer that treats Impey and his colleagues as oppressors has to explain three facts.

They sustained zamindars' pleas to the jurisdiction, consistently, and thereby kept most of Bengal outside their reach.

They held that the Company's own courts were courts and that their judges were immune for judicial acts unless corrupt, which is the opposite of an imperial claim.

And every abuse they restrained was a real abuse, admitted in the Company's own papers: the attorney who withheld the proceedings, the councillor who sat on the board that imprisoned his creditor, the officers who decided an inheritance they had never been asked about.

The criticism that survives is narrower, and a student should make it precisely. The Court's remedies were English remedies in an Indian setting, and its costs and its process were ruinous. It did not adapt, and it had almost no power to adapt, because its process came from a Charter it could not alter.

A worked example: answering the standard question

"Discuss the working of the Supreme Court at Calcutta with reference to decided cases."

A good answer has five moves.

1. Establish the Court: section 13 of the Regulating Act, the Charter of 26 March 1774, four judges, five jurisdictions, King's Bench powers, appeal to the King in Council.
2. State the three defects above, in one sentence each.
3. Take the cases in groups, not in a list: the three habeas corpus and damages cases showing real abuse restrained; Dutt v. Hosea and the zamindar question showing the Court's actual position; Nandkumar and Cossijurah showing the absence of any umpire.
4. Put both sides, using the Company's own documents on each: Hastings's letter of 12 January 1778 against the Patna Council; the Company's attorney's letter of 31 August 1777 in Sarup Chand; Bogle's report of 13 November 1778 on the zamindars; and against the Court, the costs figures and the Burdwan diwan's complaint.
5. Conclude with the remedy Parliament chose, which is the Settlement Act of 1781, and say what it changed. That connects topic 1.2 to topic 1.3 and is what separates a first-class answer from a competent one.

Distinctions worth having straight

What beginners get wrong

"The Supreme Court was a failure." It was a failure in its first six years, on its founders' own terms, and Cowell records that afterwards, with diminished powers, it won its way to greater authority and respect among Europeans and Indians alike than any other tribunal that has ever existed in India. Say both.

"The judges were to blame." The judges decided cases as they arose under a statute that did not tell them what law to apply or over whom. The blame that sticks to Impey personally is a different matter: accepting from the Council, in 1780, the office of Judge of the Sadar Diwani Adalat with a salary held at their pleasure.

"The Council were to blame." They were, for using force instead of an appeal. They were not for objecting to a jurisdiction whose limits nobody had defined.

Quick revision

• Three defects of the Regulating Act: no rule as to the applicable law; no definition of who was subject; no authority in India competent to decide between the Court and the Government.
• Group one, real abuse restrained: Kamaluddin, Sarup Chand, the Patna case.
• Group two, the Court's actual position: Dutt v. Hosea; and Bogle's report that zamindars' pleas to the jurisdiction were always sustained.
• Group three, no umpire: Nandkumar (no appeal from a capital conviction) and Cossijurah (settled by sepoys).
• For the Council: ignorance of the country, ruinous costs, damage to the revenue. Against them: they never appealed to the King in Council in five years.
• For the Court: every abuse it restrained was admitted in the Company's own papers. Against it: English remedies, English costs, no power to adapt.
• The remedy: the Settlement Act of 1781.

Test yourself

1. State the three defects of the Regulating Act that the working of the Supreme Court exposed. That it did not say what law the Court was to apply; that it did not define who was subject to its jurisdiction, leaving the questions of who was a British subject and whether the Company's acquisitions amounted to sovereignty to be decided case by case; and that it provided no authority in India competent to decide between the Court and the Government.

2. Group the seven proceedings by what each shows. Kamaluddin, Sarup Chand and the Patna case show real abuse restrained; Dutt v. Hosea shows the Court's moderate stated position on the status of the Company's courts and their judges; Nandkumar and Cossijurah show the absence of any umpire, on the criminal side and on the civil side respectively; and the trial of Radhacharan Mitra is used in the debate about whether English criminal law had previously been applied to Indians at Calcutta.

3. What is the single strongest answer to the Council's complaint of usurpation? That the Court's decisions were appealable to the King in Council, that the Council had five years in which to obtain a decision and appeal, that Impey repeatedly suggested it, and that they never did it.

4. What is the single strongest criticism of the Court that survives? That its remedies, its process and its costs were English and ruinous, and unsuited to the country; a talukdar might be ruined by the expense of successfully pleading to the jurisdiction, and in one case costs of over Rs 1,600 were incurred to recover Rs 400.

5. Why is it wrong to say simply that the Supreme Court failed? Because it failed only in its first phase, under a statute that made failure very likely. After 1781, with reduced jurisdiction, it acquired greater authority and respect among Europeans and Indians than any earlier tribunal in India.