CHAPTER 03
Regulating act 1773
Supreme Court at Calcutta
Act of settlement
REGULATING ACT:
The company servant made lot of money in India when they went to U.K started to live lavishly and even they bought the seals of house of commas. The population of U.K started to doubt the working of east India Company. The shareholders of the company voted and started to get the big dividends from the year 1676 it was the rule that the company will pay to the British exchequer, 4 lakh pounds every year to retain its territorial acquisition and revenues. The company servants made money started to become rich and company was making losses, so company approach to British government for loan. After this House of Commons appointed a select committee and a secret committee to probe the affairs of company before giving company the loan amount. The report suggested that company should be brought under the British parliament and reports mentioned the evils of company affairs. After the parliament enacted the regulating act 1773 to remove the prevailing evils. Parliament amended the constitution of company brought company under the British parliament with this era of parliamentary enactment started.
PROVISION OF REGULATING ACT:
The term of the directors of east India Company was increased from 1 year to 4 years and provision was made that every year one fourth directors were elected in rotation. The voting power of shareholders was restricted. The company directors were required to lay before the treasury all correspondence from India relating to revenue and before a secretary of state everything dealing with the civil and military affairs o the government of India. The act appointed a governor general and council of 4 at Calcutta.
They got all the powers civil and military regarding all the company acquisition as well as revenue in the kingdoms of Bihar Bengal and Orissa. Warren Hastings appointed the 1st governor general and pother 3 came from England. All were to hold office for 5 years but king can remove them if courts of the directors recommended the removal. The Governor general got only one vote and casting vote in case of the Governor general did not get the power to overrule the majority vote because of this other 3 council members always opposed the policies of warren hasting and the Ist 6 years warren hasting found it very difficult to introduced new laws or policy. In the year 1776 one member from the council died and warren became powerful because of casting vote only in the year 1786 Governor general got the right of vote to override the decision of council because of experience they knew that without vote Governor and council fails to show the results and implement policies. The regulating act put the madras and Bombay presidency under the supervision of Calcutta presidency in matters of war and peace. The subordinate presidencies were required send regularly all details of revenue and other important matters to the governor general only in emergency situations subordinate presidencies were allowed to take decisions if required because of necessity. This madras and Bombay presidency always took the decisions without fearing Governor General.
FEATURES OF REGULATING ACT –
1) Election for Directors
2) Control over correspondence
3) Appointment of Governor general and council
4) Extent of Governor General is power
5) Bombay and Madras under control of Governor General
6) Establishment of Supreme Court
7) Legislative power under the Act of 1773
8) Prohibition from engaging private trade
9) Power to punish English servants
10) Justice of peace
CREATION OF SUPREME COURT AT CALCUTTA –
King George III on 26 March 1774 issued a Charter establishing the Supreme Court at Calcutta. The Charter appointed Impey as the Chief Justice and Robert Chambers, Stephen Caeser and John Hyde as Puisne (Normal) Judges. In India Supreme Court at Calcutta enjoyed jurisdiction in all type of matters whereas same time in England they got different Courts for each only after the passage of 100 years after the passing of judicature Act of 1873 in England all the different Court came under one.
Supreme Court consist of Chief Justice and 3 other Judges who were appointed by the King and they were to hold the office during its pleasure only the barrister with the 5 years of minimum expenses was eligible to become the Judge. The court was to be a court of record. The court got the jurisdiction in following Criminal, Civil, Admiralty and Ecclesiastical Jurisdiction.
In criminal case the court was to act as a court of over and terminal and goal delivery for the town of Calcutta and the factories. The jurisdiction of the court was not to extend to all person of Bihar, Orissa and Bengal. It extended to the servants of Majesty company servants etc.
Supreme Court was not allowed to hear the cases against the Governor General and Council and exception was crime of Felon or Treason. The appeals from the Supreme Court were made to the King in Council in England.
Governor General and Council got the power to make the laws and rule but with the condition that all the rules and law must be registered in the Supreme Court did not become effective until they were registered and published in Supreme Court. Any person in India got the power to appeal against such rule within 60 days in the king in council which then set aside such a rule or changes the law. The appeal was to be made in the Supreme Court was Calcutta within stipulated period it was mandatory to send all rules made by Governor General to a secretary of State in England. Any person in England got right to appeal against the rules within 60 days after the rule were published in the England. King in council got the Sue Motto power to change or disallow any rule without appeal within the period of 2 year. This provision of law and rule registration in the Supreme Court made it easy to introduce the new laws and rules which saved the time as now it was not required to take the permission from the England head office of the company.
The best part of that was Supreme Court reviewed the law before it become the law, the Governor General and council, Supreme Court judges and its officers were not allowed to do any private trade in India as well as they were forbidden to accept any gifts and presents. In the beginning of one of the problem with the regulating Act was that majority terms were not defined properly by the regulating Act and it lead to the conflict between the Supreme Court judges Governor General and Council.
GOOD FEATURE OF REGULATING ACT 1773 AND CHARTER OF 1774 –
1) The constitution of the company was improved by the Regulating Act.
2) The Governor General and Council of Calcutta presidency constituted the central executing authority.
3) The control of the British Government over the company was tightened and made more effective.
4) The Regulating Act authorized by the British Crown to establish a Supreme Court at Calcutta.
5) Provisions were made for the maintenance of fair and impartial administration on the company’s settlement in India.
DEFECT OF REGULATING ACT 1773
Trail of Raja Nand Kumar (1775) (The judicial Murder)
Case of Kamaluddin (1775)
The Patna Case (1777-79)
The Cossijurah Case (1779-80)
Though the aim and objects of the framers of the Regulation Act were very good, many defects came to light subsequently. They were wither due to the inexperience of the policy-makers in Indian affairs or due to defective drafting of the provisions of the Act. The defective drafting of the provisions of the Act resulted in conflict between the Governor General and the members of his council. It also resulted in conflict between the Supreme Court and the Governor –General and council.
1) Conflict between Governor General and Councilors –
The regulating Act appointed a Governor General and four members of the Council. It was expected that this new set-up would improve the old defective state of affairs. In the first instance, persons, who were to occupy these posts, were also named in the Act. Only one Councilor Richard Barwell and the Governor – General Warren Hasting were appointed from amongst the Company’s servants working in India. They were well acquainted with the Indian political development and the Company’s role in India. The British Parliament made the mistake of sending out to India three Councilors, namely Clavering, Monson and Francis who were altogether new and were ignorant an\bout Indian affairs. They came to India at the instance of some politically influential leaders in England. They were prejudice against Warren Hastings and the Company’s officials in India. Several times Governor – General and Warren Hastings found himself out-voted by the factious majority of the Council. It led to constant conflicts between the Governor – General and Members of his Council on various issues. Such frictions were bound to react on the efficient working of the Governor-General and Council, which was the highest authority in India for policy-making and decision-taking regarding the company.
CASE LAWS –
TRIAL OF RAJA NANDKUMAR (THE JUDICIAL MURDER) –
Raja Nand Kumar, a Hindu Brahmin was a big Zamindar and a very influential person of Bengal. He was loyal to the English company ever since the days of Clive and was popularly known as “black colonel” by the company. Three out of four members of the council were opponents of Hastings, the Governor-General and thus the council consisted of two distinct rival groups, the majority group being opposed to Hastings. The majority group comprising Francis, Clavering and Monson instigated Nand Kumar to bring certain charges of bribery and corruption against warren Hastings before the council whereupon Nand Kumar in march, 1775 gave a latter to Francis, one of the members of the council complaining that in 1772, Hastings accepted from him bribery of more than one Lakh for appointing his son Gurudas, as Diwan. The letter also contained an allegation against Hastings that he accepted rupees two and a half lakh from Munni begum as bribe for appointing her as the guardian of the minor Nawab Mubarak-ud-Daulah. Francis placed his letter before the council in his meeting and other supporter, monsoon moved a motion that Nand Kumar should be summoned to appear before the Council. Warren Hastings who was presiding the meeting in the capacity of Governor-General, opposed Monson’s motion on the ground that he shall not sit in the meeting to hear accusation s against himself nor shall he acknowledge the members of his council to be his judges. Mr. Barwell ,the alone supporter member of Hastings ,put forth a suggestion that Nand Kumar should file his complaint in the supreme court because it was the court and not the council ,which was competent to hear the case. But Monson’s motion was supported by the majority hence Hastings dissolved the meeting. Thereupon majority of the members objected to this action of Hastings and elected Clavering to preside over the meeting in place of Hastings .Nand Kumar was called before the council to prove his charges against Hastings. The majority members of the council examined Nand Kumar briefly and declared that the charges leveled against Hastings were proved and directed Hastings to deposit an amount of Rs.3, 54,105 in treasury of the company, which he had accepted as a bribe from Nand Kumar and Munni Begum. Hastings genuinely believed that the council had no authority to inquire into Nand Kumar’s charges against him. This event made Hastings a bitter enemy of Nand Kumar and he looked for an opportunity to show him down.
FACTS OF THE CASE:-
Soon after, Nand Kumar was along with Fawkes and Radha Charan were charged and arrested for conspiracy at the instance of Hastings and barwell.
In order to bring further disgrace to Raja Nand Kumar, Hastings manipulated another case of forgery against him at the instance of one Mohan Prasad in the conspiracy case. The Supreme Court in its decision of July 1775 fined Fawkes but reserved its judgment against Nand Kumar on the grounds of pending fraud case. The charge against Nand Kumar in the forgery case was that he had forged a bond in 1770. The council protested against Nand Kumar’s charge in the Supreme Court but the Supreme Court proceeded with the case unheeded. Finally, Nand Kumar was tried by the jury of twelve Englishmen who returned a verdict of ‘guilty’ and consequently, the supreme court sentenced him to death under an act of the British parliament called the Forgery Act which was passed as early as 1728.
Serious efforts were made to save the life of Nand Kumar and an application for granting leave to appeal to the king-in-council was moved in the Supreme Court but the same was rejected. Another petition for recommending the case for mercy to the British council was also turned down by the Supreme Court. The sentence passed by the Supreme Court was duly executed by hanging Nand Kumar to death on August 5, 1775.In this way, Hastings succeeded in getting rid of Nand Kumar.
CRITICAL APPRAISAL:-
Chief Justice Impey in this case acted unjustly in refusing to respite to Nand Kumar. No rational man can doubt that he took this course in order to gratify the Governor-General. The trial of Nand Kumar disclosed that the institution of Supreme Court hardly commanded any respect from the natives as it wholly unsuited to their social conditions and customs. The trial has been characterized as “judicial murder” of Raja Nand Kumar which rudely shocked the conscience of mankind. Raja Nand Kumar’s trial was certainly a case of miscarriage of justice.
The decision of the Supreme Court in the trail of Raja Nand Kumar became a subject of great controversy and criticism for the following reasons.
a) Charge against Raja Nand Kumar was preferred shortly after he had leveled charges against Warren Hastings.
b) Chief justice Impey was a close friend of Hastings.
c) Every judges of the Supreme Court cross-examined the defense witness due to which the whole defense of Raja Nand Kumar collapsed. It was also not legal according to the rules of procedure prevailing at that time.
d) After the trail, when Nand Kumar was held guilty by the Court he filled an application before the Supreme Court for granting leave to appeal to the King-in-Council but the court rejected this application without giving due consideration.
e) Nand Kumar applied for mercy to His Majesty but his case was not forwarded by the Supreme Court. The Supreme Court was empowered by the Charter of 1774 to reprieve and suspend such capital punishment and forward the matter for mercy to His Majesty. Earlier in 1765, a native, named Radha Charan Mittre was tried in Calcutta for forgery and death sentence was passed. A petition was sent to Governor Spencer from the native community of Calcutta requesting “either a reversal of sentence or a respite pending an application to the throne”. The prayer was granted and Radha Charan got a free pardon from the King.
f) Nand kumar commited the offence of forgery nearly Five year ago, i.e., much before the establishment of the Supreme Court. Nand Kumar was sentenced to death under the English Statute of 1729 on a charge of forgery but this Act was not applicable to India.
g) Under the Hindu Law or the Mohammedian Law, the offence of forgery was not made punishable with death.
In view of the peculiar feature of the trail, as stated above, and the events which took place before the trail, the Judgment of the Supreme Court in Raja Nand Kumar’s case became very controversial. The trail and execution of Raja Nand Kumar shocked not only Indians but also foreigners residing in India. It was considered most unfortunate and unjust. The role of chief Justice Impey became a target of great criticism. On their return to England, Impey and Warran Hastings were impeached by the House of Commons and the execution of Raja Nand Kumar was an important charged leveled against them.
a) Case of Kamaluddin (1775)
Kamaluddin was an ostensible holder of a salt farm at Hijili on hehalf of Kant Babu. KantBabu was the real farmer. In 1775 Kamaluddin was arrested and committed to prison without bail on the ground that he defaulted payment of arrears or revenue. It was as per the order of the Revenue Council of Calcutta Kamaluddin was committed to prison without bail.
Kamaluddin approached the Supreme Court at Calcutta and obtained a writ of Habeas Corpus. The Supreme Court directed to set him free on bail. The Supreme Court granted the bail and directed that he should not be re-arrested until the actual amount due is ascertained. The judges further directed that Kamaluddin should not be imprisoned again until the real farmer Kant Babu had been called upon to pay the arrears and had proved to be insolvent.
The Members of the Supreme Court expressed their resentment against the action of the Judges of the Supreme Court and stated that the Judges of the Supreme Court were not empowered to take cognizance of any matter relating of the revenue. According to them the Company was confirmed as Dewan of Bengal by the Regulating Act and the Supreme Council had exclusive jurisdiction. The majority of the Supreme Council, therefore, decided to order the Provincial Council to re-imprison Kamaluddin and to pay “no attention to any order of the Supreme Court or any of the Judges in matters which solely concern revenue”. But Governor-General Warren Hastings refused to support the proposed steps of the majority of the Supreme Council.
This case is of historical importance as it reflects on a vital questions relating to the jurisdiction of the Supreme Court over the acts of Company’s servants working in the capacity of Collectors of Revenue. It is clear from subsequent developments that the Council came into serious conflict with the Court. The cause of Kamaluddin was an eye-opener disclosing defective provisions of the Regulating Act due to which the Supreme Court and the Supreme Council came into conflict.
b) The Cossijurah Case (1779-80)
Raja surendernarainZamindar of Cossijurah was under a heavy debt to KashinathBabu. Though Kashinat Bab tried to recover the money from the Raja through the Board of Revenue at Calcutta his efforts proved in vain. He therefore filed a civil suit against the Raja of Cossijurah in the Supreme Court at Calcutta. He also file an affidavit on 13th August, 1777 stating that the Raja being a Zamindar, was employed in the collection of revenues and was thus within the jurisdiction of the Supreme Court. The Supreme Court issued a writ of Capias for the Raja’s arrest. Being afraid of the arrest the Raja avoided service of writ by hiding himself. The Collector of Midnapur, in whose district the Raja resided, informed the Council about these developments. The Council, after seeking legal advice from its Advocate-General, issued a notification informing all the Landholders that they need not pay attention to the process of the Supreme Court unless they were either servants of the Company or had accepted the Court’s jurisdiction by their own consent. The Raja was also specially informed by the Council and, therefore, his people crave away the Sheriff of the Supreme Court when that official came with a writ to arrest the Raja of Cossijurah.
The Supreme Court issued another writ of sequestration on 12th November, 1779 to seize the property of the Raja in order to compel his appearance in the Supreme Court. This time the Sherriff of Calcutta. With a force of sixty or seventy armed force men,marched to Cossijurah in order to execute the writ, they imprisoned the Raja and it is said that the Englishmen outraged the sanctity of the family idol. In the meantime, the Governor –General and Council directed Colonel Ahmuty, commander of the armed forces near Midnapur to intercept and arrest the Sheriff with his party and release the Raja from arrest. Colonel Ahmuty sent Lieutenant Bamford with two companies of sepoysto arrest the Sheriff with his party. On 3rd December, 1779 Bamford, with the help of Willaim Swanston, arrested the Sheriff and his party while they were returning and kept them in confinement for three days. Later on, they were sent to Calcutta as prisoners. Council released the Sheriff’s party and directed Colonel Ahmutty to resist any further writ of the Supreme Court.
c) The case of saroopchand –
Sapoorchand, malzamin for the payment of revenue, was held to have become liable for payment of Rs. 10,000/- as balance of payment. He disputed his liability. Saroopchand contended that he had advanced a loan of Rs. 10,000 to John Shakespeare, a member of the Council. John Shakespeare denied the contention but admitted that there was some financial transaction between them. Saroopchand being unable to discharge his liability the Decca Provincial Council committed him to custody till such time as he shall have paid the amount. On an application for a writ of Habeas Corpus being moved in the Supreme Court, after hearing, the Court held that it was an arbitrary abuse of power. As regards the liability as treasurer, the court held that the revenue council should sue him elsewhere and not decide the claim itself. It stated that the Council had no right to be a judge in its own case and to attempt to secure its claim by arbitrary imprisonment. The Supreme Court, therefore, released Saroopchand on his giving security to appear and answer to any suit which the Company might institute against him in any competent court and to pay all sums of money as were adjudges to be due to the Company.
d) The case of Gora Chand Dutt –
In the Murshidabad Provincial Council, Gora Chand Dutt filed a suit against MirzaJelles to recover sum due from him Mirza claimed larger sum was due from Dutt. The judgment went against Dutt. Dutt brought a suit in the Supreme Court against Hosea, Chief of the decree. Dutt contended that the proceedings of the adalat were irregular. Though the case went in favor of the Company’s Courts. It did reveal how irregular their proceedings were.
ACT OF SETTELMENT 1781
Act of Settlement came for removal of the defects of the Regulating Act. The conflict between the Supreme Council and Supreme Court reached to a very serious stage. A petition against the Supreme Court activities in Bengal was submitted to the British parliament by the Supreme Council. Besides a petition signed by Zamindars, the Company’s Servants and other British subjects inhabiting Bengal was also sent to the British Parliament against the Supreme Court. British Parliament against the Supreme Court. The British parliament appointed a parliamentary committee to make inquiries into the matter and prepare a report. The committee prepares report on the conflict between the Supreme Council and Supreme Court in 1781. On the basis of this report, the British parliament passed an Act in 1781. This Act is known as settlement Act, 1781.
A survey of the history of 7 years from 1774 to 1780 shows that the provision of regulating Act 1773, and the Charter of 1774 created many problems and conflict. The chain of events and the trail of the Cossijurah case pointed a\out the serious growth of conflict between the judiciary and executive. Not only the Governor- General and Council and the inhabitants of Bengal, also submitted their petitions to the King in England.
SALIENT FEATURE OF ACT OF SETTELMENT 1781 –
The Act of 1781 was passed in order to explain and amend the provisions of Regulating Act, 1773. Some important provisions of the Act of settlement may be briefly summarized as follows:
i) The Act declared that the Governor-General and Council have immunity from the Jurisdiction of the Supreme Court for all things done or order by them in their public capacity and acting as Governor-General and Council.
ii) The Governor-General and Council and any Peron acting under their orders had no immunity before English Courts.
iii) Revenue matters and matters arising out of its collection were excluded from the jurisdiction of the Supreme Court.
iv) English law was not applicable to the natives. Hindu and Mohammedan personal laws were preserved in matters relating to succession and inheritance to lands, rents, goods and in matter of contract and dealings between parties.
v) Where parties were of different religion their cases should be decided according to the laws and usages of the defendants.
vi) The Supreme Court was empowered to exercise its jurisdiction in actions for wrongs of trespass and in civil cases where parties had agreed in writing to submit their case to the Supreme Court.
vii) It was also provided that the Supreme Court would not entertain case against any person holding judicial office in any country courts for any wrong inquiry done by his judicial decision. Persons working under the authority of such judicial officers were also exempted.
viii) The Parliament recognized Civil and Criminal Provision Courts. These Company’s Courts were existing independently of the Supreme Court. It was one of the most important provisions of the Act of 1781 as it completely reversed the policy of the Regulating Act.
ix) The Act provided that the Sardar Diwani Adalat will be the Court of Appeal to hear appeals from the country courts in civil cases. It was recognized as Court of Record. Its judgment was final and conclusive except upon appeal to the King-in-Council in civil cases involving Rs. 5000 or more. Sardar Diwani Adalat was presided over by the Governor-General and Council was also empowered to hear and decided cases or revenue and undue force used in the collection of revenue.
x) The Act of 1781 authorised the Governor-General and Council to frame Regulations for the Provincial Council and Courts.
