Regulating act and Supreme Court

at Calcutta & The three historic

cases

Legal & Constitutional History

FACULTY OF LAW
JAMIA MILLIA ISLAMIA
SUBMITTED BY:
Iqra Meraj
B. A. LL.B. (Hons.)
Class: 2nd yr

SUBMITTED TO:
Mr. Yasir
Table of Contents

1. Evolution of Judiciary

2. Introduction

3. The Regulatory Act 1773

4. The Supreme Court at Calcutta

5. Warren Hastings attitude towards the SC

6. Trial of Raja Nand Kumar

7. The Patna Case

8. The Cossijurah Case

EVOLUTION OF JUDICIARY

The concept of Dharma or law in ancient India was inspired by the Vedas which
contained rules of conduct and rites and compiled in Dharma Sutras, were practiced
in a number of branches of the Vedic schools. Their principal contents address the
duties of people at various stages of life, the rights and duties of the kings and
juridical matters. These were basis of Hindu Law. The earliest document throwing
light on the theory of jurisprudence, which forms part of practical governance, is the
Artha Sastra of Kautilya dating back to circa 300 B.C. The third chapter deals with
Vyavahara i.e. transactions between two or more parties or Vivada or disputation.

During the first seven centuries of Christian era, there evolved a number of Dharma
sastras which dealt extensively with Manu, Yajnavalkya, Narda and Parashara smiritis
etc. In medieval India, the religious leaders endeavoured to transform Islam into a
religion of law, but as custodian of justice, the rulers made the Sharia, a court
subservient to their sovereign power. Theoretically the rulers had to be obedient to the
Sharia and history speaks about certain cases where sovereigns unresistingly
submitted to the Qazi’s decision. The rulers sat in a Court known as Mazalim
(complaints). According to Ibn Battuta, Muhammad bin Tughalaq,ruler of Tughalaq
dynasty, heard complaints each Monday and Thursday. From 13th century onwards,
an officer known as Amir-i- dad presided over the secular Court in sultan’s absence.
He was also responsible for implementing Qazis’ decisions and for drawing their
attention to the cases which constituted miscarriage of justice.

The Muftis were the expert on Sharia law and gave Fatwas (formal legal rulings) on
disputes referred to them by members of the public or qazis. The Chief Judge of the
sultanate was known as the qazi –i- mamalik also known as the qazi- ul- quzat.
During Mughals period the secular judge was known as Mir- adl. He acted as a judge
on the Emperor’s behalf. He was required to make impartial and personal inquiries.
He was also responsible for implementing qazi’s decisions. Emperor Akbar also
appointed two officers, called tui-begis, to supervise the adherence to the law and
fixed a nominal amount as their fee. The same system was followed till British took
over the power of India.

Introduction

A great step was taken in the Indian legal history when the supreme court of
judicature was created at Calcutta under the regulating act of 1773. Bengal, Bihar and
Orissa were in the grip of confusion, chaos and anarchy after the battle of plassey. The
company’s servants exploited the people, amassed the wealth and returned to
England. All servants high or low suffered from one obsession only how to achieve
easy fortune in India and return to England as soon as possible. These people led a
life completely out of tune with the prevailing social moves. The newly enriched ex-
servants of the company dabbled in British politics by purchasing with their ill gotten
money seats in the House of Commons and thus offended the landed aristocracy.
They purchased stock of the company and sought to influence its policies. In the
meanwhile, the news of the famine led the British public suspect that something was
palpably wrong with the company’s affairs in Bengal. A realization was dawning on
the British politicians that the company was no longer a mere commercial body, but it
had assumed the character of a political and territorial power in India. As was
commented by Edmund Burke:..

“The east India Company did not seem to be merely a company for the extension of
British commerce, but in reality a delegation of the whole power and sovereignty of
this kingdom sent into the east”.

Therefore it was being realized that the company should not be left alone outside the
sphere of the parliamentary control. Public opinion was thus slowly crystallizing in
favour of the parliamentary interventions of the company’s affairs.

The climax of the whole affair was reached when due to its financial embarrassment
the company had to approach the British government for a big loan. The paradox of
the whole situation was that while its servants were getting richer, the company itself
was fast getting into financial difficulties. Its shareholders voted increased dividends
for themselves from 1767; it was required to pay a tribute of four lakh pounds every
year to the British exchequer in consideration retaining its territorial acquisitions and
revenues.

According to Ilbert, this was the state’s share of the “Indian spoil”. In the prevailing
atmosphere, the British government could not possibly give a loan to the company
without probing into its affairs. Therefore, a select committee and a secret committee
were appointed by the House of Commons for this purpose. In a number of
condemnatory reports, these committees exposed the defects and the deficiencies
prevailing in the existing structure. These reports “drove home the conviction that the
independence of the company must yield to the supremacy of the parliament” and
thereby parliament consequently enacted the regulating Act, 1773, to remove the evils
of the prevailing system. The Act modified the constitution of the company and
subjected it, to some extent, to the control of British government and parliament,
reorganized the Calcutta government and established the Supreme Court at Calcutta.
With the passage of this Act, era of royal charters gave place to the era of
parliamentary enactments.

Henceforth, parliament enacted a number of Acts; the era of royal charters gave place
to the era of parliamentary enactments. Henceforth, parliament enacted a number of
Acts, usually one Act at an interval of twenty years each, to renew the company’s
charter. On each occasion the affairs of the company were subjected to close
investigation and security and each time the authority of the crown and parliament
was tightened over the company.
The Regulating Act 1773
The Regulating Act was passed by Lord North’s Government in 1773. It was designed
to remove the evils inherent in the Company’s constitution and to give an
orderly and efficient government to its territories in India. This object of the
Act was made explicit by Lord North (Prime Minister of Great Britain during
the period when American War of Independence took place), himself in these
significant words: “Every article in it is framed with a view to the placing the
affairs of the Company on a solid, clear and decisive establishment.” The Act
also provided the basis of the Anglo-Indian Constitution.

The Bill for this act was introduced by Lord North on May 18, 1773. It is therefore
also called Lord North’s Bill. Lord North ‘emphasised the need of placing the
Company’s affairs on a solid, clear and decisive establishment.’ It is important
to note that before this Bill, by an act of 1767 of the British Parliament, the
Company had committed to pay £ 400000 to the Exchequer of British
Government for ‘for the privilege of retaining its territorial and revenues’ in
India.

The Act made many intricate provisions, but the ones that are most relevant to the
company's Bengal kingdom are as follows:

1. That, for the government of the presidency of FORT WILLIAM in Bengal, there
shall be a Governor General, and a Council consisting of four councillors with
the democratic provision that the decision of the majority in the Council shall be
binding on the Governor General.
2. That WARREN HASTING shall be the first Governor General and that Lt.
General John Clavering, George Monson, Richard Barwell and PHILIP
FRANCISshall be four first Councillors.
3. That His Majesty shall establish a SUPREME COURT OF
JUDICATUREconsisting of a Chief Justice and three other judges at Fort
William, and that the Court's jurisdiction shall extend to all British subjects
residing in Bengal and their native servants.
4. That the company shall pay out of its revenue salaries to the designated persons
in the following rate: to the Governor General 25000 sterling, to the Councillors
10,000 sterling, to the Chief Justice 8000 sterling and the Judges 6000 sterling a
year.
5. That the Governor General, Councillors and Judges are prohibited from
receiving any gifts, presents, pecuniary advantages from the Indian
princes, ZAMINDARs and other people.
6. That no person in the civil and military establishments can receive any gift,
reward, present and any pecuniary advantages from the Indians.
7. That it is unlawful for collectors and other district officials to receive any gift,
present, reward or pecuniary advantages from zamindars and other people.
The provisions of the Act clearly indicate that it was directed mainly to the
malpractice and corruption of the company officials. The Act, however, failed to stop
corruption and it was practised rampantly by all from the Governor General at the top
to the lowest district officials. Major charges brought against Hastings in his
impeachment trial were those on corruption. Corruption divided the Council into two
mutually hostile factions- the Hastings group and Francis group. The issues of their
fighting were corruption charges against each other. Consequently, PITT'S INDIA ACT,
1784 had to be enacted to fight corruption and to do that an incorruptible person,
LORD CORNWALLIS, was appointed with specific references to bring order in the
corruption ridden polity established by the company.

The Supreme Court At Fort William Calcutta:

An important innovation made by the Regulating Act, 1773, was that on March 26,
1774, King George (III) issued a charter for the creation of the Supreme Court of
Judicature at Calcutta superseding the judicial System prevalent there under the
charter of 1753 which did not provided for the due administration of Justice in such a
manner as the state and condition of the company’s presidency of Fort William in
Bengal did and must require. Therefore, the Act sought to provide an improved and
more effective Judicial Tribunal.

Constitution Of The Supreme Court:

The Supreme Court was to consist of a Chief Justice and Three Puisne Judges. 1The
Judges were appointed by the British King. A barrister of five years standing was
qualified to be appointed as Judges. The judges were to hold office during the
pleasure of the crown. Sir Elijah Impey was appointed as the first chief Justice of the
Supreme Court.2
The Judges of the Supreme Court were also required to be justice of peace 3 and to
have such jurisdiction and authority as the Judges of the Court
of King’s Bench in England had under the common Law. As such, Judges of the
Supreme Court were given the status of the Judges of the Kings bench in
England.

Jurisdiction Of the Supreme Court

The Supreme Court was empowered to hear civil cases against:-

1. The Company; the Corporation of Calcutta.
2. His majesty’s subjects residing or having any debt or property in Bengal, Bihar and
Orissa; executors and Administrators of such subjects.

1
Later on the number of Puisne Judges was reduced to two.
2
Robert Chambers, Stephen Caesar Le Maistre and John Hyde were the first Puisne Judges of the
Supreme Court.
3
A judge who handles minor legal matters such as misdemeanors, small claims actions, and traffic
matters in "justice courts." Dating back to early English Common Law, Justices of peace were very
common up to the 1950s, but they now exist primarily in rural "justice districts" from which it is
unreasonable for the public to travel to the county seat for trials of minor matters. A justice of the peace
is usually an attorney, but some states still allow laypersons to qualify by taking a test.
3. Any person employed by, or being directly or indirectly in the services of the
company, the corporation, or
4. Any of His Majesty’s Subjects, any inhabitant of Bengal, Bihar and Orissa, if he
entered into a written agreement with any of His Majesty’s subjects agreeing that in
case of dispute, the matter would be determined by the Supreme Court and the cause
of action exceeds Five Hundred rupees.
The court was to be the court of Record.4 The court was empowered to hear Civil,
Criminal, Admiralty and Ecclesiastical jurisdiction as well as to establish rules of
practice and process and to do all things necessary for the administration of Justice
(section 13).

As a criminal court, the Supreme Court was to Exercise the powers of and act in such
manner and form or as nearly as the condition and circumstances of the place and
person admitted of, as a court of Oyer and Terminer and Goal Delivery in and for the
town of Calcutta, the factory of Fort William and the factories subordinate thereto.
The court would summon Grand Jury consisting of His Majesty’s Subjects resident in
Calcutta to present the court Crimes and Offences within their knowledge. For
criminal cases a petty jury consisting of British Subjects and residents in Calcutta was
to be used.
In case where it might be proper to remit the general severity of law, the Supreme
Court was given the power to reprieve or suspend the execution of any Capital
sentence wherein the Judges thought that their was a proper occasion for mercy until
the pleasure of the crown was known. In such cases, the court was to transmit to the
crown the record of the case with the reason for recommending the criminal to mercy.

As an ecclesiastical court, the Supreme Court was authorized to exercise an

Ecclesiastical Jurisdiction on British Subjects residing in Bengal, Bihar and Orissa
according to the Ecclesiastical law prevailing in diocese of London. The Supreme
Court, therefore, could grant probate of Wills. British Subjects dying within Bengal,
Bihar and Orissa. The Supreme Court could also issue Letters of administration for
the goods, chattels and other effects of the British Subjects dying intestate or without
appointing an executor to persons and their estates, according to the rules prevalent in
England.

The Supreme Court was also to be the court of Admiralty for Bengal, Bihar and
Orissa to hear and try in the same way as the Admiralty Court in England. It was to
hear all “causes civil and maritime” and “all maritime crimes” committed upon the
high with the help of a petty Jury consisting of British Subjects resident in Calcutta.
The maritime Jurisdiction was to extend to His Majesty’s Subjects residing in Bengal,
Bihar and Orissa and persons directly or indirectly in the service of the company or
any of His Majesty’s subjects.

4
In common law jurisdictions, a court of record is a judicial tribunal having attributes and exercising
functions independently of the person of the magistrate designated generally to hold it, and proceeding
according to the course of common law, its acts and proceedings being enrolled for a perpetual
memorial. Judgments of a trial court of record are normally subject to appellate review. In many
jurisdictions, all courts are courts of record. In many jurisdictions, courts that have the power to fine or
imprison must be courts of record. In almost all jurisdictions, a court of record will have a court clerk
whose primary duty is to maintain the permanent records. Traditionally, a court of record was required
to have its own unique seal, which was used to authenticate its judgments and copies of its records .
Further to ensure the court of Request5, justices of the peace and court of quarter
sessions held by the justice of peace at Calcutta might act conformably to law and
justice, the supreme court was to Supervise and control these courts in the manner and
form as inferior courts and magistrates of England were subjects to the control of the
courts of King’s Bench, to do so, the Supreme Court could issue various prerogative
writs of mandamus, certiorari, procedendo or error.

Appeals:

Provisions for appeals from the Supreme Court to the King-in-council were made in
the Charter. In the civil cases any appeal lay with king- in council if the subject matter
in dispute exceeds one thousand pagodas and the petition seeking the requisite
permission was presented to the Supreme Court within six months from the day the
judgement was pronounced. In criminal cases, the Supreme Court was to have full
and absolute direction to allow or deny permission to make an appeal to king-in-
council. Besides king in- council reserved the right to refuse or admit an appeal, as a
special case from any judgement, decree or order of the Supreme Court upon such
terms and conditions as it thought fit.

The court was also empowered to admit such and so many advocates and attorneys as
it thought proper only they were to be entitled to appear, plead and act on behalf of
the suitors in the court. The Governor General and Members of his Council and the
Judges of the Supreme Court were exempt from imprisonment except for treasons and
felony.

Law To Be Administered By The Supreme Court:

The Regulating Act of 1773 was silent about the law which the Supreme Court was to
administer and contain no effective provisions to restrict the Jurisdiction of the
Supreme Court over Indians. The Judges appointed to the court were well versed with
English Traditions and were also learned in English Laws but they were altogether
unfamiliar with codes of Indian Laws, the customs and traditions of the Indian people.
Nor did they care to acquaint themselves with them. Therefore, Justice was
administered by applying the English Law and procedure. According to Cowell,

“This Tribunal, vested with extraordinary powers and so ludicrously unsuited to the
social and political conditions of Bengal, was not merely to exercise a civil and
criminal jurisdiction, wholly strange and repugnant to the Indian people. It might sit
one day on its common law side and give judgement to a suit and on the next day
might sit on its equity side and restrain that suitor, from proceeding to execution”.

One of the first achievements of the court was the hanging of Raja Nand kumar for an
Act committed many years before the court was instituted and in accordance with an
English statute which could never extend to India.

5
This court was created under the charter of 1753 at each presidency town to decide cheaply,
summararily and quickly cases upto five (5) pagodas or fifteen (15) rupees. The idea underlying it was
to help the poor litigants who could not defray the expenses of litigations at Mayor’s Court.
Disaffection Between Government and The Supreme Court:

In the wake of the Establishment of the Supreme Court at Calcutta, disaffection arose
between the government and the Supreme Court mainly under three heads:

a) The courts exercise of jurisdiction over the revenue officers so as to punish them
for corrupt or oppressive acts done in their official capacity in the collection of
revenue and issuing of Habeas corpus to liberate those who had been confined for the
non-payment of the revenue.

b) The claim of the Supreme Court to try illegal Acts of the Judicial Officers of the
Company done by them in their official capacity.

c) Issue of writs of Capias against the native defendants residing in Bengal, Bihar and
Orissa to make them appear before the court to plead to its jurisdiction.

Warren Hasting’s Attitude Towards The Supreme Court:

Before the contest between the Supreme Court and the council came into the open
Warren Hastings’s attitude towards the court was one of the sympathy and support.
Although Hastings called it as “a dreadful clog on the government” because of some
misgivings yet he was pleased with the appointment of Sir Elijah Impey as its Chief
Justice. Hastings characterized him as the man of “sense and moderation” .
Initially, Warren Hastings’s opinion was that the main defect in the Supreme Court
was that its powers were not universal. His remedy was that either the Supreme Court
must be “armed with a full authority” or its operation “restricted to the town of
Calcutta and the commercial factories and to British subjects only beyond them”.
Warren Hastings declared that “on any other footing its Jurisdiction will be eluded, or
it will be an embarrassment to the Government”.

But when Warren Hastings got back the leadership of the government through his
casting vote after the death of one of its members of the majority, his attitude towards
the court underwent a great change. Hastings then became bitterly hostile to the
Supreme Court and took decisive action to contain its operation within the town of
Calcutta.

This conflict between the Supreme Council and the Supreme Court is brought about
in many cases and one of the most important cases which bring about the conflict is
Raja Nandkumar’s case.
Trial Of Raja Nandkumar6

The case of Nandkumar stands in a class by itself. It brings about the conflict between
Warren Hastings and the majority in the council, on the one hand and between the
Supreme Court and the majority on the other.

Situation In The Background Of The Trial:

1) Case of Queen of Burdwan:- In 1774, the Queen Of Burdwan alleged that

Hastings had taken illegal bribe of sixteen thousand rupees from her to make her
minor son Diwan after the death of her husband. When the council started hearing of
the case, Hastings left the meeting and refused to listen to anything against himself.
The meeting of the council was adjourned.

2) Case Of Munni Begum:- Munni begum was appointed guardian of the

Nawab. In 1775 it was found by the council of Murshidabad that she had spent 9,
67,693 rupees which was quite a large sum. Begum was asked to submit the accounts.
In her statement of accounts she had mentioned that she has presented one lakh fifty
thousand rupees to Governor General Warren Hastings as gift. The allegation was in a
way proved. Hastings mentioned that acceptance of such gifts was not by that time
prohibited by the parliament.

Reason Behind The Nandkumar’s Trial:

Hastings had many enemies. Nandkumar, who was an influential Brahman of Bengal,
regarded Warren Hastings with great detestation and Warren Hastings also hated him.
Nandkumar had been humiliated by the upshot of the prosecution of Mohammad
Raza Khan in which Nandkumar was an unrewarded tool. Now, at a time when
Governor General’s Prosecution by new councilors was one of the themes of Calcutta
discussion, Hastings Forbade Nandkumar and showed special favour to one Mohan
Prasad (Nandkumar’s arch enemy). Nandkumar found an ally in Fawke, an
Englishman, who was not in company’s employment. On Hastings refusal to produce
his correspondence with Middleton17, charged Hastings for accepting as bribe, a sum
of Rs.1,04,105(one lakh four thousand one hundred five)for appointing Gurudas as
Diwan and from Munni Begum Rs.2,50,000(two lakh fifty thousand) for appointing
her as the guardian of infant Nawab, Mubarakud- din Daulah. Hastings had to admit
that she gave him a lakh and a half when he visited her at Murshidabad, which he
(later sir James Stephen) considered as entertainment money.

In reaction to this Hastings left his chair, declaring all meetings without him illegal,
he refused to be treated as on trail before his own council. The majority, however,
voted clavering into the chair, called in Nandkumar and decided to go on with the
charges. This injured the feelings of Hastings who finally determined to prosecute the
man by whom he was accused with all weight of his authority.

6
Raja Nandkumar was once Governor of Hugli under the Nawab Siraj-ud-din Daulah in 1756
and later due to his loyalty to the English Company in 1757 was nicknamed as “Black
Colonel” during Clive’s period.
Facts Of The Nandkumar’s Case

After a few days, Nandkumar along with Fawke Brothers (Joseph Fawke and Francis
Fawke) and Radhacharan was charged and arrested for conspiracy at the instance of
the Governor General Warren Hastings and Barwell, a member of his council. Warren
Hastings being revengeful manipulated another suit of forgery against Nandkumar
which was brought by Mohan Prasad. In the conspiracy case, the Supreme Court
delivered its judgement in July 1775. Fawke was fined but the judgement was
reserved against Nandkumar on account of the pending case. The council protested
and remonstrated but Nandkumar was tried by twelve British Jurymen who held him
guilty of the offence of forgery. The Supreme Court sentenced him to death under an
Act of 1728 passed by the British Parliament. The sentence of death was duly
executed by hanging him on 5th August, 1775. Thus Warren Hastings fulfilled his
desire through the instrumentality of his friend Sir Elijah Impey, the then Chief
Justice of the Supreme Court.

IMPORTANT QUESTIONS TO BE DEALT WITH

Whether NandKumar was under the jurisdiction of the court?

Objection regarding the jurisdiction of the Supreme Court over Raja Nandkumar was
based on the ground that before the advent of the Supreme Court, the Indians in
Bengal were tried by their own men in their own criminal local courts, the faujdari
adalats. In this case the offence was committed in 1770, i.e. before the formation of
the Supreme Court, thus Nandkumar could be tried only by Faujdari Adalat and not
by the Supreme Court.

According to Keith, the Supreme Court had committed an “odious crime” by

convicting Raja Nandkumar. Thus the role of Supreme Court did not exhibit a very
healthy tendency conducive to the protection of interests of Indians against the
oppression of servants of the Company. It showed an anomalous character of the
Supreme Court in so far as it exercised jurisdiction over Indians.

Whether the English Act of 1728, which made forgery a capital offence and under
which Raja Nandkumar was tried, was extended to India?

Nand Kumar’s case throws interesting light on the early notions entertained by the
Supreme Court on the question of applicability of the English law to Calcutta. The
court held that the statute of 1728 was applicable to the presidency towns. Now
whether an English law is applicable or not to a place is determined by two factors:

1. Whether or not it is suitable to the conditions prevailing there?

The theory of English law is that it is not the whole of English law, but only such
portions thereof as suit the conditions of the colony, which are introduced there, even
the charter laid that the Supreme Court would administer criminal justice in such and
like manner as the court of oyer and terminer and gaol delivery did in England. The
question therefore was that whether the statute of 1728 making forgery a capital
offence in England suited the conditions prevailing in Calcutta at that time. The court
specifically went into the question, took evidence, heard arguments and concluded
finally that the town of Calcutta enjoyed a great commercial importance and the
conditions which made the Act necessary in England existed in Calcutta also and so
the law in question suited Calcutta.

2. The date when the English law was introduced there?

At that time nobody entertained any doubt that the English law had been introduced
into Calcutta not only by the charter of 1726 but also by the charter of 1753. Impey
did assert at that time that all the criminal law in force in England 1753 became the
law in Calcutta. On this supposition the court held that the Act of 1728 was applicable
to Calcutta and so Nandkumar was tried. Later, however, the judicial view underwent
a change and it came to be held that English was introduced in the presidency towns
in 1726 and that the subsequent charters could not be regarded as substantive re-
introduction of English law upto their date. On this view the Act of 1728 could not be
made applicable to Calcutta and so Nandkumar could not be punished there under.
Looking in retrospect therefore Nandkumar’s trial thus becomes unlawful. Moreover
quite a good amount of this law was repugnant to the customs and morals of the
Indian people.

CERTAIN PECULIAR FEATURES OF THE TRIAL

• Every judge of the Supreme Court cross-examined the defence witnesses due to
which the whole defence of Raja Nandkumar collapsed. Judges took the unusual
course themselves in cross-examining the witnesses and ‘that somewhat severely’.
Indian witnesses were not conversant with the English law and procedure and this
shattered the whole defence of Nandkumar.

Criticizing the attitude of the judges H.E. Busteed wrote, “ The desire of the judges
was to break down Nandkumar’s witnesses, in particular the Chief Justice’s manner
was bad throughout and that the summing up was unfavourable.”

• After the trial when Nand Kumar was held guilty by the court he filed 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. Under its charter the court had the power to reprieve and suspend the
execution of a capital sentence and recommend the case for mercy to His Majesty.
The court did not exercise this powering favour of Nandkumar though there could not
perhaps be a strong case deserving exercise of the court’s power. Denial of permission
to appeal to the King in Council to Nandkumar was in a nutshell, a blatant disregard
of justice, Supreme court ought to have exercised this jurisdiction in order to prove its
impartiality in the eye of law.

• Nandkumar committed the offence of forgery nearly five years ago in 1770 i.e.
much before the establishment of the supreme court. The Act of 1728 under which
Nandkumar was tried had never been formally promulgated in Calcutta and the
people could not be expected to know anything about it. He was thus tried by an ex
post facto law in the prosecution was based on the
charter.
• Neither under Hindu law nor under Muslim law was forgery considered to be a
capital crime. To sentence an Indian to death under these circumstances by applying
literally an obscure English law was nothing short of miscarriage of justice. It appears
that the attitude of the court was conditioned by the hostility which the majority of the
council had shown to the court from the very beginning of Nandkumar’s trial. Keith
has rightly said, “ The sentence in any event, as a matter of plain duty, have been
respited by the court, but Hastings’ private secretary intervened to prevent such
action, and the councilors did nothing.”

• It was doubtful whether Supreme Court had jurisdiction over Nandkumar, who was
not a resident of Calcutta and that too in a case initiated on the complaint of Mohan
Prasad, another native. Thus, Warren Hastings prosecuted Nandkumar through a
native, Mohan Prasad.

All these facts show the mala fides of the Judge of the Supreme Court and the fate
which Nandkumar met was due to a pre-determined plan. Edmund Burke very
correctly narrated the popular view in his speech on “Fox’s India Bill” that “Raja
Nandkumar was by an insult on everything which India holds respectable and sacred,
hanged in the face of all his nation, by the Judges you sent to protect that people
hanged for a pretended crime, upon an ex post facto Act of the British Parliament in
the midst of his evidence against Mr. Hastings.”

TRIAL OF NANDKUMAR: A Judicial Murder

Many English historians expressed the view that Nandkumar was tried and executed
by Impey at the instance of Hastings. “Men will never agree”, P.E. Roberts writes,
“as to the meaning of this somewhat mysterious sequence of events, for the  key to
them lies in the ambiguous and doubtful region of secret motives and desires.
The incident created an extraordinary impression and it was naturally believed for a
long time that Nandkumar had the penalty of death nominally for forgery, but really
for having dared to accuse the governor general.”  Those who accuse Impey and
Warren Hastings allege that Hastings first tried to ruin Nandkumar on a conspiracy
charge but after realizing that it did not implicate Nand Kumar directly, he got him
capitally indicted on a charge of forgery preferred ostensibly by Mohan Prasad.

Nandkumar’s trial has always been looked upon with suspicion. Macualay, Mill and a
host of other historians have accused Chief Justice Impey of committing a  judicial
murder. It has been suggested that Nandkumar was a victim of Hastings’ wrath ; that
Nandkumar was tried ostensibly for forgery but really for his daring to bring charges
of   corruption   against   the   governor   general.   Impey   was   a   good   friend   of   Warren
Hastings. It has therefore been suggested that Warren Hastings conspired with Impey
to put Nandkumar out of Hastings’ way and thus served as a willing tool to gratify the
governor   general.   Two   of   the   strongest   circumstances   against   Impey   were   his
friendship with Hastings and the commencement of Nandkumar’s trial within
a few days of his accusing the governor general. Then the way the trial was
conducted also raised strong doubts about the court’s impartiality and bona fides.

Nand Kumar had presented a petition to the Council of the following effect which
was translated into English after his execution and is cited by Stephen:

“For the fault of representing at this time a just fact which for the interest of the king
and the relief of the people in a small degree made known, many English gentlemen
have become my enemies and having no other means to conceal their own action,
deeming of destruction of the utmost expediency for themselves, revived an old affair
of Mohan Prasad’s which had formerly been repeatedly found to be false; and the
governor knowing Mohan Prasad to be a notorious liar, turned him out of his house,
and themselves becoming his aiders and abettors and Lord Impey and other Justices
have tried me by the English laws, which are contrary to the customs of this country,
in which there was never any such administration of justice before, and taking the
evidence of my enemies in proof of my crime, have condemned me to death. But by
my
death the King’s justice will let the actions of no person remain concealed; and now
that the hour of death approaches I shall not for the sake of this world be regardless
of the next, but represent the gentlemen of the council. The forgery of the bond of
which I am accused never proceeded from me. If I am unjustly out to death, I will
with my family demand justice in the next life. They put me to death out of enmity and
from partiality to the gentlemen who have betrayed their trust, and in this case the
thread of life being cut. I in my last moment again request that you gentlemen will
write my case particularly to the just King of England.”

But the prayer was unheard and respite was not granted by the council. According to
Lord Macualay, “Impey acted unjustly in refusing respite to Nandkumar; 
Hastings, three or four years later, described Impey as the man to whose support he
was at one time indebted for the safety of his fortune, honour and reputation.”
 These words may safely be taken to refer to Impey’s assistance in Nandkumar’s trial.
“No Indian after Nandkumar was executed for the crime of forgery and in 1802 the
Chief Justice expressly admitted that it was not capital.”

Beveridge  points out that the judges, jury and the counsels were all foreigners all
unacquainted   with   the   language   of   the   witnesses   and   Nandkumar   himself.   The
interpreter   through   whom   the   trial   was   conducted   was   not   very   proficient   in   the
Bengali language. Moreover he points out that the defence counsel was not a barrister
and so depended on the Chief Justice for his position and thus could not take an
independent line lest Impey should feel offended. Beveridge definitely asserts that
there is a strong circumstantial evidence that Hastings was the real prosecutor. The
trial   was   unfairly   conducted;   the   judges’   examination   of   the   witnesses   was
inquisitorial and minute and the Chief Justice hanged Nandkumar in order to serve a
political purpose when the forgery was not conclusively proved. 

Beveridge expresses his resentment in the vigorous words, “What I and every honest
man who knows the facts blame Impey for, is that he allowed himself to be prejudiced
by his partiality for  Hastings, and his hatred of the majority and that he hanged
Nandkumar in order that peculators in general, and his friends and patron Warren
Hastings in particular might be safe.”
However, contrary to all the above views, Stephen, who had made a detailed study of
Nandkumar’s   trial,   justifies   the   conduct   of   both   Impey   and   Warren   Hastings.   He
states,  “Mohan Prasad was the real substantial prosecutor of Nandkumar and that
Hastings   had   nothing   to   do   with   the   prosecution   and   that   there   was   not   any
conspiracy or understanding between Hastings and Impey in relation to Nandkumar
or in relation to his trial or execution.” He supports his views by saying that the trial
was   held   by   four   judges   and   12   jury   men   all   of   whom   could   not   have   been   in
conspiracy against Nandkumar.  Dr. B.N.Pandey  has taken views similar to those of
Stephens’ and has supported Impey’s decision by which the English Act of 1728 was
extended to India.
Opinions are thus varied as to the nature of the trial. Macualay, Mill, Beveridge,
Roberts have condemned the trial as a mockery of law whereas Stephens and Dr. B.N
Pandey have found the trial to be not abnoxious.

Finally, P.E. Roberts is of the opinion that, “Even if we hold it established that
there was no judicial murder, there was certainly something equivalent to miscarriage
of   justice.   For   that,   however,   the   Supreme   Court,   in   the   first   instance,   Hastings’
opponents on the council subsequently, were mainly responsible.” Thus it has been
rightly called as a “judicial murder.”

What is most significant to note here is the fact that forgery has never been a
capital offence in our country. Nand Kumar could not have been executed on the
charge of forgery had his trial been conducted under India’s own law. Not only the
charges were not proved satisfactorily, Raja Nand Kumar had been tried under an
imported law by twelve members of the Jury all of whom were foreigners and had
absolutely no knowledge of Indian laws. Even enlightened Englishmen called Nand
Kumar’s execution a judicial murder.

It   is   rightly   said   that   the   British   came   to   India   not   to   help   Indians   but   to   help
themselves.
The Patna Case
The Patna Case Happened in the years 1777, 1778, and 1779, this is very interesting
case.

Shahbaz beg khan came to Patna from the Kabul and joined the company army; he
made money and settled in Patna.

As he did not have any children, he called his nephew Bahadur Beg from Kabul to
stay with him and he expressed his desire to adopt him and hand him his all property.
Before this Shahbaz died in the year 1776.

After this the fight started between the widow [of Shahbaz Beg,] Nadirah begum and
nephew Bahadur Beg regarding the property of Shahbaz Beg.

Bahadur Beg filed a suit against the Begum in the Patna Provincial Council which
functioned as the Diwani court for the town under the warren Hastings plan of 1774

As per the law English judges were helped by the Kazis and Pundits to understand the
customs and laws of community. Kazi and Pundits were not supposed to decide the
cases wholly.
But English law officers were not interested in the Indian customs they were more
busy in collection of revenue.

So English judges gave, allowed the local officers to hear the evidence, decide the
fact and expound the law. Patna council left the entire matter in the hands of Muslim
law officers.
Begum was not given any notice regarding this suit.

Muslim law officers rejected the Begums claim of gift of deed which she said her
husband made.
As Muslim law does not recognize adoption they rejected the claim of the Bahadur
Beg also.

They decided that the property of deceased’s property be divided as per the Hanafi
school of intestate succession,
One fourth property was allotted to the widow,
Three fourth go to shahbaz beg brother, father, but as he was at Kabul and could not
look after property it was entrusted to Bahadur Beg as his son and representative in
India.

The provisional council considered the report in the presence of the vakeels of both
the parties and confirmed the same and ordered the Muslim law officers to divide the
property.

Begum did not accept the fourth share and she left the house and took shelter in the
Muslim shrine for the 4 months.
To force her to return home a guard was posted at the shrine. She was even denied
food. The guard was withdrawn after a month.
Then Begum appealed the Sadar diwani adalat but that time Sadar diwani adalat was
not functioning, Then Warren Hastings wrote a letter the Patna chief council for
explanation and Later Patna chief informed to the Hastings about the matter. But
nothing happened.

Then Begum filed a case in the Supreme Court against the Bahadur Beg , kazi and
muftis for the assault, battery, false imprisonment , breaking and entering her house
and taking away her property and claimed damages amounting to Rs.6 lakh.

Then Supreme Court issued the bailable arrest warrant against the Bahadur Beg, kazis
and muftis.
They were arrested in the Patna and brought before the Supreme Court at Calcutta the
reason they all failed to furnish the bail of 400,000 Rupees. And they were kept in
jail.
After few days government gave bail for the kazi and muftis.

Later Supreme Court heard the case and found that Patna council and kazis and
muftis did not function as per their duties and did not function,perform their duties as
per the procedure of law.

The court found the deed of gift original and true and valid.
The court awarded damages of Rs.3 lakh to the Begum for personal injuries.
As defendants failed to pay the damages they were sent to the Jail.

This case is the excellent example which shows us to Indians the power of Courts if
they are easy to approach for the common people and speedy trial.

The other famous case is Cassijurah case – In this case Supreme Court forces came
against the Forces of government regarding court case. The case involves the
contempt proceedings against the Governor General and council who send forces to
stop the Supreme Court forces. This case is landmark case as Supreme court and
Executive, government came to fight with each other.

The government servants as well as English servants did not like the powers of
Supreme Court, on the other hand majority Indians like the power of Supreme Court,
which gave them justice against the Corrupt Government Indian as well as white
officers of the company.

In the year 1777, the company directors complained about the working of courts in
Calcutta in the England and demanded that the division of powers is required so that
Court will not interfere in the working of government in India.

Consequently in the year 1780 House of Commons appointed a select committee

known as the Touchet Committee to hold a through inquiry into the administration of
justice in Bengal, Bihar and Orissa.

The committees report led to the passing of new act, the act of settlement 1781, to
remove the doubts of the regulating act, to support the government and to safeguard
the ancient laws and customs of Hindus and Muslims.
House of commons knew that this law will empower the Executive and this is what
they wanted, because We As Indians should not forget that the Company just started
their business and control of India ,in this case to increase that control over India , it
was necessary that Executive becomes strong and powerful .

This act clearly said that Governor General and Council is not under Supreme Court.
No person will be liable to court if he acts on the order of Governor General or
council.

It was again decided that Hindu and Muslim laws should be used for the
communities.

Sadar Diwani Adalat got the status of court. - Revenue Matters, cases

Supreme Court was not allowed to hear any cases against the misconduct of any
government working or adalatas.

The Supreme Court was not allowed to hear the revenue cases and this way
Government as well as government employees got full freedom to rob the Indians.
Government Employees were also Indians.

This way Government became more powerful than the Courts. And Judiciary became
secondary.

After the act of 1781 Supreme Court worked more for the next 8 years.

But that time Supreme Court was so successful that it was established in the Bombay
and Madras.

The Cossijurah Case

In this case the dispute between the Supreme Court and the Supreme Council which
began after the Regulating Act reached the crisis. As Lord North Naylor puts it in the
House of Commons, “the judicial and the political powers were in arms against each
other”. This case represented the breaking point between the government and the
Supreme Court in 1779.

Facts of the Cossijurah case:

Cossinaut Babu (Kashinath), a native of Calcutta loaned a large sum of money to the
Zamindar of Cossijurah, Raja Sunder Narain. On the money remaining unpaid for
long and his requests to the Government for help in recovering the money remaining
unfruitful, Cossinaut Babu, brought a suit in the supreme court against the Zamindar
Raja Sunder Narain on 13th of August 1779, stating that Raja Sunder Narain as a
Zamindar was liable to the court in revenue disputes as he was employed in the
collection of revenue and that the loan documents were executed and the money was
advanced to the Zamindar at Calcutta. The Court thus issued a Writ of Capias
warranting arrest of the Raja Sunder Narain (Zamindar) subject to being released on a
Bail of three lakh Rupees. The Zamindar (Raja Sunder Narain) went underground to
save himself from arrest and the Writ remained thus unexecuted.

The collector of Midnapur, within whose limits area of Cossijurah falls, informed the
government of the situation and stated that the Zamindar was being prevented from
collecting the land revenue. Hastings and his council consulted their Advocate
General as to whether the court was entitled to pursue private debts?. The Advocate
General was very doubtful whether the few remaining rights of people to whom we
have left but little should be thus invaded. Advocate General also maintained that the
Regulating Act did not extend the jurisdiction of the supreme court to the Zamindar
and therefore he suggested that the Zamindar of Cossijurah be told that not being
subjected to the supreme Court’s Jurisdiction, he should not appear, plead, or do any
act which might amount on his part to recognize that the courts authority extended to
him. He also advised the government in such cases it should not employ its power in
aid of the court but should leave it to the court itself to execute its processes. The
government, accordingly, gave notice to the Zamindar as advised , it also published a
general notification informing all land holders and Zamindars that they were subject
to the Court only if they were Servants of the company or had voluntarily assumed its
jurisdiction under a contract with one of His Majesty’s Subjects in case exceeding
five thousand rupees and if they did not fall in any of these categories, they were not
subject to the court’s jurisdiction and therefore should not pay attention to its process.

The collector of Midnapur was directed by the Supreme Council to refuse any
assistance to the Sheriff’s men who might require in seeing the writ on the Raja and
so the Collector did not provide any assistance to the sheriff.
On the writ of Capias being returned, the court proceeded with issuing a writ of
Sequestration of the Zamindar’s property with a view to force him to appear before it.
Sixty men headed by a sergeant of the Court were sent to execute the Writ. A
complaint was brought by the Zamindar that the Sheriff’s party entered his house,
beated and severely injured his servants forcibly broke open and entered his Zenana
Premises, committed outrages upon the place of religious worship, plundered his
effects and prohibited his farmers from paying their rents. The Governor General and
Council intruded the Zamindar not to recognize the Authority Of the Court or to
Submit to its Jurisdiction and Employed the Military to prevent Execution of the
process of the Court by apprehending the Sheriff’s Officers with all their followers.
This negated the claim of the Court that at least any person alleging that he was not
subject to its Jurisdiction must plead accordingly Cossinaut Babu then brought an
action for trespass against the Governor General and members of his Council
individually. At first these persons entered their Appearance in the Court but when
they found that they were being sued for Acts done in their public capacity. They
withdraw their appearance and informed the court that they would not submit to any
process which it might issue against them. They denied that their corporate acts as the
government of the Presidency are done in execution of power in them by parliament
“are cognizable in the Supreme Court” of Judicature or that they or answerable as
individuals in this Court for the consequences of such acts. The Court took no further
action against them though Chief Justice Impey also sent a small force to Cossijurah.
Councils were exempt from the criminal process by the Supreme Court. They were
not exempt from civil action. The Supreme Court initiated proceedings against the
attorney of the Company North Naylor on the ground that being an Attorney of the
Supreme Court he gave advise to the Government to defy the Courts process and even
the Governor General and Council themselves were individually served with
Summons of the suit of the Decree Holder, Cossinaut Babu, whose process of
Execution was disturbed by them. However, the Governor General and members of
his council appeared firstly but later refused to submit to the Jurisdiction of the court
for Acts done by them in their public Capacity.

Criticism of the Cossijurah Case

As the Government violently interfered with the normal working of the court because
it had asserted an unwarranted Jurisdiction over the Zamindars who were not subject
thereto under the Act or The Charter. This is however, incorrect. This was the result of
misinterpretation of the Supreme Court’s position. At no time the Supreme Court said
that Zamindars were subject to its Jurisdiction. The Courts position was that there
might be some other circumstances making the Zamindars liable to its Jurisdiction
e.g., a Zamindar may be in the Service of the Company and then he would be subject
to the Courts Jurisdiction and he would not be exempt from it merely he was a
Zamindar.
The issue of Cossijurah was different. It related to the preliminary plea regarding the
Supreme Court’s Jurisdiction. The Supreme Court had a choice to decide about its
jurisdiction with respect to Zamindars.

The Zamindar of Cossijurah could have appeared before the Court and pleaded to its
Jurisdiction which would have been accepted by the court and thereby stopping it
from taking any further action against him. However, the Zamindar took a different
action as he was encouraged by the Government.
On the plea that Collection of Revenue was suffering, the Government resented to
show of force to stop the Court’s process. This conduct of the Court was definitely
reprehensible.
On explanation for the behavior of the Government in this case was that Government
did not like the Supreme Court should touch the Zamindar for that interfered with the
collection of revenue. But there is another explanation for the Governments conduct,
it is that Government did not want the Court to pronounce upon the status of the
Zamindars as such A pronouncement would have deeply affected the revenue
Collection whether the court Verdict was favorable or unfavorable to the Zamindar.7

The Courts Jurisdiction was not general but personal and so it was necessary to
decide before the case could proceed further whether the defendant was subject to its
Jurisdiction or not. And this could properly have been decided by the Court alone.
When the Defendant (Raja Sunder Narain) would have appeared before it and placed
all the relevant materials before it to decide, if the question of Jurisdiction was left to
each individual to decide as the Council contended then the Court would become a
complete nonentity as no one would like to appear before it.
7
If court held the Zamindar in service of the company court could have claimed check oppressive
practice committed by them in Revenue Collection and thereby effecting revenue Collection for
Government on the other hand if court decided that a Zamindar is absolute proprietor of his Zamindari,
then the Zamindars would get the medium through the court to check excesses committed towards
them by the Government itself. They should have resisted their removal from their Zamindari’s at
Government’s Will. Government thus wanted to evade any enquiry into the status of Zamindars.
Therefore, the Governments Position and its show of force was indefensible, it should
be noted here that the Courts process was in itself a great evil for the Indians
generally. In the Cossijurah’s case, the Court started with issuing a Writ of Capias
with a bailable clause but the amount of bail was kept at a very high figure i.e., Rs. 3
lakh. It was not easy for the people to arrange for the necessary Bail. In most of the
cases the Defendants were put behind the bars till their plea to the Courts Jurisdiction
would be accepted and they would remain in prisons for few months and even if at
last the defendant were declared not to fall under the Courts Jurisdiction they would
have suffered badly in body, money and reputation by remaining in prisons. The
Court could have done something to alleviate the Situation through its rule making
power. It had merely introduced the system of the plaintiff filing an affidavit to show,
and on what facts, the defendant was liable to its Jurisdiction. The Affidavit would be
examined by the judge only then would be a Writ of Capias issued. This however was
not an effective safeguard against the misuse of courts procedure by unscrupulous
litigants.

It could have mitigated the amount of bail or prevent imprisonment as far as possible.
Arrest on the mesne process was beyond all questions. One of the most oppressive
points of the law of England and its introduction into India was indefensible. Banerjee
had ascribed the system of mesne process to desire on the part of the Judges to
increase their power and Patronage through increase in the Work of the Court.

Conclusion

It is, therefore, submitted here that the Nandkumar’s Trial , disclose the early notion
of the Supreme Court as regards the operation of the applicability of the English law
to Calcutta . The supreme court was of the view that the statute of 1728 under which
Nandkumar was sentenced to death, was applicable to Calcutta, giving rise to a proof
of question whether an English statute have been made applicable to the presidency
town of the Calcutta or not and according to modern view it depended upon the two
important questions .viz.,

1. Whether the statute suited to the conditions and environment of the

town concerned, and

2. What was the date on which the English Law was made introduced
there?

To consider the first question, under the charter only that portion of English Criminal
law which was suitable to the conditions of the colony which would be introduced
there. The Question therefore was whether the Act of 1728 making forgery a capital
offence in England suited the conditions prevailing in Calcutta at that time. The Court
specifically deliberated on this question and laid down that … The Town of Calcutta
enjoyed a great commercial importance and that condition which made the Act
necessary in England existed in Calcutta also and so the law suited Calcutta.
Chambers,J., was doubtful on this point but Chief Justice overruled him by saying
that he has always recognized Calcutta to be greatly commercial. But it was
questioned by Beveridge that the act in question was not applicable to any town in
Scotland or America and Calcutta could not at the time be regarded more commercial
than any of the town in Scotland and America. He also pointed out that the question
of Calcutta being commercial should have been considered with reference to 1770
when the document in question was alleged to have been forged.

With respect to the second question, the Charter of 1726 introduced a Mayor’s Court,
not a Court of Company, but that of the king of England in Calcutta. The law to be
applied was law of England. It was implied from the terms of terms of Charter and it
was accepted that it introduced into the Presidency towns the law of England both
common and statute law as it stood in 1726. Again the question was whether the
subsequent Charter of 1753 and 1774 introduced English law into Calcutta. This
question was neither raised nor decided by the Supreme Court but it was held by the
Court that English law was introduced by 1726 and had also been introduced in India
from time to time. On this basis, Nandkumar was sentenced to death under the Act of
1728.However this action of Supreme Court has been severely attacked by many later
critics who have held that the English law was finally introduced in 1726 and not
thereafter. Thus, in their view, the Act of 1728 could never be taken in force in India
until and unless it was especially extended to this country and the fact is that it was
never promulgated in Calcutta.

According to Keith, A.B.,..

“It is clear that the provision of English statute of 1718 for making Forgery a capital
Offence was not legally in force in India”.

Thus it can be concluded here that both the trial and Conviction of Nandkumar was
illegal. The Supreme Court had committed a judicial murder which the history could
never forgive.

As far as Cossijurah case is concerned the crux of the case was given by Sir James
Stephen who said:

“The real ground of the quarrel between the Supreme Court and the Supreme Council
went far deeper than any of the topics of Grievance on which so much has been said.
The Supreme Court held, as they could not but hold, that everyone in Bengal, Bihar
and Orissa was subject to its Jurisdiction, to this extent that he was bound, if sued in
the Supreme Court to appear to plead to the Jurisdiction. The whole contention of the
council of the Supreme Council was not so and if anyone not being an English born
Subject or in the pay of the Company was sued in Supreme Court he was justified in
taking no notice of its process”.

It means it was for the Defendant to judge for himself whether he was amenable to
the jurisdiction of the court or not. It may be said that the conduct of the Government
in this case was reprehensible. If they had thought that the conduct of the court went
beyond its legislative power, they ought to have taken the straight forward legal
course of getting a direct decision from the court upon the question in which they
were directly interested and testing its correctness by an appeal to the King-in-
Council but instead of lawful means they resorted to violence and lawlessness.
Therefore, it is hereby submitted in the light of the above given observations that the
Supreme Court did not exhibit a very healthy tendency conducive to the protection of
interests of Indians against the oppression of the servants of the company. It showed
an anomalous character of the Supreme Court in so far as it is exercised jurisdiction
over Indians. The Supreme Court applied harsh English laws to the Indian conditions
which proved a disaster.
It was deemed necessary that the difficulties emerging out of these cases ought to be
removed. Therefore, a petition signed by principal British Inhabitants of Bengal was
sent to parliament against the exercise of powers by the Supreme Court. Thereby the
ultimate result was the Act of 1781, one of the objects of which was to provide relief
to certain persons who were imprisoned at Calcutta and to indemnify the Governor
General and the members of his Council and all the Officers who acted under the
orders of the Government in interfering with the process of the Supreme Court. The
Act Of Settlement, 1781, was passed to settle many Controversial issues as to the
jurisdiction of the Supreme Court and as to the relation of the Supreme Court with the
Supreme Council and the Company’s Courts.