Legal history 4th semester, Lecture notes of Constitutional Law

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UNIT- I

ESTABLISHMENT OF EAST INDIA COMPANY –

The first East India Company was incorporated in England under a Charter granted by Queen Elizabeth on 31st^ December 1600. The company was given executive trading right in Asia including India, Africa and America. The trading area so defined covered almost every part of the world except Europe. No other British subject could trade in this area without obtaining a licence from the company. The charter was granted for 14 years and it could be renewed for another 15 years only if it did not prejudicially effect the Crown and its people. The company was managed by Court of Directors. The members of the company in a general meeting, called “the court” elected annually a Governor and twenty-four directors to look after and manage the affairs of the Company. In early days the administration of justice in the settlement East India Company was not a high order. There was no separation between the executive and the judiciary the judiciary was under the control of the executive the judges were not a law experts. The company gave lesser importance to the judicial independence fair justice and rule of law. The administration of justice and developments of courts and judicial institution during this period may discussed under the following headings – CHARTER OF 1661 – The charter issued on 3rd April, 1661 by Charles II has a special significance in the Indian legal history. By this charter the Company was empowered to appoint a Governor and council at its factories. In Addition to other powers the Governor and Council at its factories. The charter authorized the Governor and Council of Englishman inhabiting the settlement of the company. The Governor and Council of each factory to hear and decide all type of civil and criminal cases including the cases of capital offences also and it could award any kind of punishment including death sentences. Thus the Charter of 1661-

1. authorised the company to try and punish all persons living under it, including the Indians,
2. opened the doors for the introduction and application of English law in India,
3. Conferred judicial powers on the executive, viz., the Governor and Council. ADMINISTRATION OF JUSTICE IN SURAT – The East India Company established its first factory in India at Surat in 1612 during the time of Mughal Emperor Jahangir. In 1615 the Mughal Emperor on the pleading of Sir Thomas Roe issued a Firman, the Mughal Emperor allowed the Englishman to live according to their own religion and laws and to settle dispute among themselves by their president, however the disputes between on Englishman and an Indian were to be decided by the local Indian courts. Constitution and Functions of Factory- The factory was administered by a President and Council who were appointed by the Company. The decisions of the majority of the members of the council were the decisions of the Company. Apart from the exercising their powers for trading purposes the President and his Council also had the power to administer law and justice. English people were governed by a dual system of laws namely:-

servants of the office and the English servants of the company were appointed to suit at the Choultry court. SECOND STAGE – (1665 – 1683) – Although the charter of 1661 provided that the governor and council could decide every matter according to the laws of England, nothing was done until 1665, when the Dawes case arose. In 1665 one Mrs Ascentia Dawes was charged with the commission of Murder her slave girl and the Agent- in – Council referred the case to the Company’s authority in England for advice. After raising the status of agent and Council of the factory at Madras to try Mrs. Dawes with the help of Jury and an unexpected verdict of not guilty was given and consequently Mrs. Dawes was acquitted. Later on 1678 the whole judicial administration was re-organized. The judicial administration in both the towns was improved. In 1678, the Governor and Council resolved that they would sit as Court for two days in a week to decide cases in civil and criminal matters with the help of jury of twelve men. The court was called as the High Court of Judicature. This Court decided important cases in civil and criminal matters and also heard appeals against the decisions of the Choultry Court. WHITE TOWN – The court of Governor and Council was declared to be the High Court of Judicature. It was to hear all case of the inhabitance of both towns with the help of jury and also hear the appeals from the Choultry Court. It was decide cases according to English Law. The Court was to meet twice a week. BLACK TOWN – The Choultry Court was also re-organized. The number of the judges was increased from 2 to 3. All the judges were Englishmen. At least 2 of them were to sit in the Court for 2 days in each week. The Choultry Court was empowered to hear petty criminal cases. It was also empowered to hear petty civil cases up to 50 pagoda and the cases of higher value with the consent of the parties. THIRD STAGE (16 83 – 1726) ADMIRALITY COURT – In 1683 King Charles II issued a Charter. It empowered the Company to establish Courts of Admiralty in India. The Court of Admiralty was authorized to try all traders who committed various crimes on the high seas. The court was empowered to hear and determine all cases concerning maritime and mercantile transactions. The court was also authorized to deal with all cases of forfeiture of Ships, Piracy, Trespass, Injuries and Wrongs. It was stated that the court would be guided by the laws and customs of merchants as well as the rules of equity and good conscience in the task of administration of justice. The provision of the Charter of 1683 was repeated by James II in a charter issued in

1686. On 10th^ 1686 the court of admiralty was established at Madras John Grey was appointed judge of the court and to assist him 2 other English man were appointed as his assistants on 22nd^ July 1687. Sir John Biggs who was a Professional Lawyer learned in Civil law was appointed as Judge Advocate in Chief Judge of the Court. Thereafter the Governor and Council relinquished the judicial function and ceased to sit as court. The Jurisdiction of the Admiralty court was not confined to Mercantile and

Maritime Cases. It also decided both civil and criminal cases. Further it heard appeals from the Mayor’s Court. Thus it became a General Court of the Settlement. The Admiralty court was functioning regularly till 1704, but thereafter it ceased to sit on regular basis and gradually it disappeared, and its jurisdiction was transferred to the Governor and Council. MAYORS COURT – In the year 1687 Company established Madras Corporation and Mayor’s Court was the part of this corporation. In the year 1686 Madras government levied a house tax on the Madras City population to repair the City wall. But people of Madras, Local people did not pay tax and Company faced problems and difficulties to collect tax, after this company decided that to make the tax collection easy a body should be formed consisting of English men as well as Local Indians population so it will become easy for the company officials to collect the tax. The corporation came in to existence on September 29 1968 which consists of a one Mayor, 12 Alderman and 60 to 120 Burgesses. It was decided that every year new Mayor will be elected from Alderman by Alderman and Burgesses and retiring Mayor can be re-elected by them. The Alderman and Burgesses got the power to remove the Mayor if he is unable to perform his duties, only Englishman becomes the Mayor. The Alderman hold the office as long as they stayed in Madras City indirectly they hold the office for life long. Mayor, Burgesses holds the power to remove the Alderman from office also if he did not perform well. The charter appointed 29 Burgesses and then remaining Burgesses were appointed by the Mayor and Alderman. Among 1st 60 Burgesses the caste head were selected as the Burgesses. This was the nature of 1st corporation the Mayor and three Senior Alderman were to be the justice of the peace. The Mayor and Alderman were to form a court of record which was authorized to try civil as well as criminal case. This court was known as Mayors court. THE CHOULTRY COURT – The old Choultry Court was recognized and allowed to continue by the Governor. The number of Judges was increased to Three – Two Judges were required to preside over the trail of cases. The Court met 2 days in each week. The court was empowered to try civil cases up to 50 Pagodas (Pagoda was a gold Coin, One Pagoda was equivalent to 3 Rupees) and petty criminal cases. The High Court of Judicature was authorized to hear appeals from Choultry Court. Conclusion:- The overall picture of the administration of justice in Madras was not very good in these early stages. The system suffered from many drawbacks. The most outstanding of them are the following:-

1. Absence of proper judicial system.
2. Uncertainty of laws.-The Courts and the people did not know the law applicable to them and their disputes.
3. Lack of facilities in the jails.-The inmates lived in inhuman conditions.
4. Unfair trial.-The English principles of fair trial such as the principles of natural justice and benefit of doubt to the accused were not observed.

Fee at the rate of 5% was also imposed in civil cases. For deciding criminal cases, the court used to sit once in a month. Court of Conscience - This court was also presided over by Wilcox, it was called as Court of Conscience because it provided quick and summary justice. It entertained only petty cases and decided civil matters of value upto 20 xeraphins. Court of Appeals- The Deputy- Governor and council functioned as court of appeal. They heard appeals against the judgements of the court of judicaturein all matters. The judicial system which was established under the plan of 1672 worked well. It was quick, inexpensive and efficient. Its main defect was that the judges did not enjoy independence required for good administration of justice. Second Stage(1684-1693)- under the new system of judicial administration, a court of Admiralty was established in Bombay on the lines of the court of Admirality established in Madras under the charter of 1683. The Company found its authority to establish courts under the earlier Charter of 1683 granted by Charles II. The Charter provided for the establishment of Courts at such places as the Company might direct for Maritime causes of all kinds, including all cases of Trespasses, Injuries and Wrongs done or committed upon high seas or in Bombay or its adjacent territory, and each Court was to be held by a learned judge in civil law assisted by two persons chosen by the company. Such Courts were required to decide cases according to the rules of equity and good conscience and the laws and customs of merchants. Accordingly, an Admiralty Court was established at Bombay in 1684. Dr. St. John was also authorized to act as Chief Justice of the Court of Judicature. The Court of Judicature was again created, as the authority of the Admiralty Court was not sufficient to cover all other civil business. In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the judicial system of Bombay came to an end. From 1690 to 1718, in fact, the machinery to administer justice was almost paralyzed in Bombay. Thus the period from 1690 to 1718 is a dark period in Bombay’s Legal History. Third Stage(1718 to 1726)- A new period in the Judicial history of Bombay began with the revival and inauguration of a court of judicature on 25th^ March,1718 by Governor Charles Boone. It was established by the order of the Governor and Council which was later on approved by the Company authorities. The court of Judicature of 1718 consisted of ten Judges in all. It was specially provided that the Chief Justice and Five Judges will be Englishman. The remaining Four were required to be Indian representing Four different communities, namely, Hindus, Mohammedans, Portuguese – Christians and Parsi. All English Judges were also members of the Governor’s Council and enjoyed status superior to Indian Judges. Three English judges formed the quorum of the court. The Court met once a week. Indian Judges, who were also known as “Black Justice” were included mainly to increase the efficiency of the Court and their role was mostly that of assessors or assistants of the English judges. They do not appear to have enjoyed equal status with English judges. The Court of 1718 was given wide powers. It exercised jurisdiction over all civil and criminal cases according to law, equity and good conscience. It was also guided by the rules and ordinance issued by the Company from time to time. It was necessary for the Court to give due consideration to the customs and usages of the Indians. Apart from its jurisdiction over probate and administrative matters, it was further authorized to act as a Registration House for the registry of all sales concerning houses, lands and tenements.

An appeal from the decision of the Court of Judicature was allowed to the Court of Governor and Council in cases where the amount involved was Rs. 100 or more. A notice to file an appeal was to given within Forty-Eight hours after the judgment was delivers to the Chief Justice of the Court of Judicature. Moderate fees were prescribed by the Court for different purposes. For filing an appeal a fee of Rs. 5 was to be paid. Conclusion- The system established in 1718 was an imporovement upon the earlier system atleast to the extent of participation of Indian judges was allowed to the administration of Indian judges. A little bit separation of executive from the judiciary had been introduced by the court of 1718, yet the executive, i.e.the Governor and Council always interfered with the independence of the judiciary. In this way the judicial system was wanting in so many respects. The canons of natural justice and the priniciples of law were violated by the defects which have been just mentioned. SETTLEMENT IN CALCUTTA- Job Charnock, a servant of the company, laid the foundation of the british settlement in Calcutta, on 24th^ August, 1960. It began with the establishment of a factory at Sutanati on the banks of river Hugli. In the year 1668 the grandson of Aurangzeb Azimushsher, Shan, and the Subedar of Bengal gave Zamindari of villages, Calcutta, Sutanati and Govindapur for annual revenue of 1195 rupees to the East India Company. In the December 1699 Calcutta became Presidency town and Governor was appointed to administer the settlement. As a Zamindar company got all powers just like other zamindar of that time. Bengal Zamindar In Mughal Empire zamindars got judicial power but collected the revenue and maintained law and order in the zamindari area or village for judicial purpose. That time Kaziz Court was established in each District, Parganah and Villages. They handled civil and criminal matters. Normally villages panchayats solved all problems. The Judicial System was simple as everyone knew each other and transaction of each other Moghul Kings never paid any attention to Judicial System that time nothing was organized. The highest bidder became the Kazi. Justice was purchased, corruption was rampant Kazi never got salary so Kazi court fined the criminal and earned money. After this demand money from the complainant for giving him justice. The other zamindars when gave death sentence the appeal went to the Nawab, but company never did this the appeal from Zamindar’s. Collectors Court went to the Governor and Council. In Calcutta that time Collector enjoyed all the powers up to the year 1727. With the Charter of 1726 the new system was started in Calcutta presidency. Before this Charter the authority was given by company and zamindar but the Charter of 1726 was a Royal Charter. The important of this company but after this Charter Court got their permit authority from the British Crown.

• An alderman could be removed on some reasonable ground by the governor and council subject to an appeal to King in council. Thus, the attempt was to make the corporation autonomous, free from the control of the executive. Judicial structure and composition in each presidency(civil jurisdiction)
• The mayor and the aldermen were to constitute the mayors court.
• The quorum of the court was to be three-the mayor or senior alderman with two other aldermen.
• The court was to hear and try all civil suits arising within the town and its subordinate factories.
• The first appeal within 14 days would go to governor and council. From where, further appeal lay with the King in council in all matters involving 1000 pagodas or more( then currency of Madras)
• Thus, for the first time, a right of appeal to the king-in-council from the decisions of the courts in India was granted.
• It was a court of record and had power to punish for contempt.
• Had testamentary jurisdiction, could grant probates of wills of the deceased persons.
• A sheriff was chosen annually by governor and council and functioned as police.
• The form of procedure in civil action was interesting. Court might issue warrant, bail might be allowed, defendant could be detained in custody, he could be imprisoned till the judgement was satisfied, property could be seized and sold. Criminal Jurisdiction -
• Vested in the governor and five senior member of the council.
• They were known as justices of peace.
• Arrest persons, punish.
• Three justices of the peace were to collectively form a court of record.
• Session was held four times a year to try and punish each and everycriminal offence except high treason.
• Trials were held with the help of grand jury and petty jury.
• All technical forms and procedures of the English criminal justice system was introduced. Important points
• Seperation of power between the executive and judiciary was partially followed.
• Executive enjoyed a large share in the administration of justice as a criminal court and appellate court from the mayor’s court.
• Aldermen were either company’s servants or other English traders.
• justice administered by non professional judges.

INTRODUCTION OF THE CHARTER OF 1753 –

In the year 1746 the French got the control of Madras presidency because of this Madras corporation which was created after the Charter of 1726 was ceased to function in the year 1749 again British got the control of Madras to establish again Madras corporation, King George II again issue a new Charter on the 8th^ January 1753, to the Company official utilized this chance and tried to remove all the disadvantages of the Charter of 1726. The new Charter of 1753 was made applicable to the entire presidency town. New charter changed the method of appointment of Mayor and Alderman. Governor and Council got the power to appoint the aldermen. Regarding selection of the Mayor the corporation selected the names of 2 people and Governor and Council selected one of them as the Mayor every year. This way Mayor became the puppet of the Governor and Council. This way Mayor as well as Aldermen becomes the nominee of Government and Government got the Full Control of corporation. This way government got the power to appoint the judges of the mayor’s court and remove him also. If he disobeyed the government or Governor. Mayor’s Court lost all the autonomy and Independence and became Secondary in nature. The Court was allowed to hear the Indian cases only if both native Indian parties agreed and submitted the case to the Mayor’s Court. Mayor’s Court got the right to take action against the Mayor. No person was allowed to sit as a judge if he was interested in the matter in any way. Mayor’s Court got the power to hear the cases against the government and government defended them. Suitors deposited money with the government not to the Mayor’s Court. The new Charter also created the new court called as “Court of Request” at each presidency town to decide cheaply and quickly cases up to 5 Pagodas. This Court was established to help poor Indian litigants who cannot afford the expenses of the Court. The Court weekly sat once, and was, manned by Commissioners between 8 to 24 in numbers. The government appointed the commissioners and every half of the commissioners got retired and those places were filled by the ballot method by remaining commissioners. Commissioners sat in each court on rotations for small claims, cognizable by requests Court. If people plaintiff went to the Mayor’s Court the rule was that Defendant was awarded costs, this way it saved time and money also requests court got the power to hear the Indian matters also. There were 3 Courts, namely –

1. Court of request
2. Mayor’s Court
3. Jurisdiction Court of governor and Council. The court where appeal from the mayor court went criminal cases. Justice of the peace and Court of quarter sessions consisting of governor and Council. Regarding Civil cases, Privy Council in the England was the final authority. This Charter introduced many changes but this Charter took away the independence of Mayor’s Court, which way given to this court by the Charter of 1726. The East India Company with this Charter also always followed the policy not to break the customs of Hindu and Muslims. When both Indian parties agreed that time only Mayor’s Court handeled those cases. An executive enjoyed

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 1 st^ 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.

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. The Cossijurah Case (1779-80) Raja surendernarain Zamindar 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

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.