Establishment and Development of

Supreme Court at Calcutta, Bombay

and Madras

Submitted by,
Sebin James
Roll No: 1246
Second Semester
A Division
 I. INTRODUCTION
With the coming of the British to India, the legal system of India changed from what it was in the
Mughal period where mainly the Islamic law was followed. The legal system currently in India
bears a very close resemblance to what the British left us with. As per the needs of the changing
times changes and amendments were made, but the procedure which is followed not has its roots
in the era of British-India. Little did the traders of the English East India Company while
establishing their trade in India knew that they would end up establishing their rule for about 200
years here. But the evolution of law as it is today did not come about in one go altogether. The
administration of Justice in India before 1726 is discussed in this Research paper. It was the
Presidency Towns individually that were first affected by this change in hands of the governance
of India after which the steps towards amalgamation of the judicial system were taken by the
Charters of 1726 and 1753. To improve upon this, under the Regulating Act of 1773 Supreme
Courts in the Presidency Towns and then under the Act of 1798 the Recorder’s Courts at Madras
and Bombay were established. The research paper also enumerate about their jurisdiction and
the conflict between Supreme Court and Supreme Council in the later years. The famous cases
such as the Trial of Raja Nanda Kumar, case of Kamal-ud-din, Patna case and Cossijurah’s case
are examined in this paper.

The paper also elaborates about the powers and functions of Supreme Courts at Bombay and
Madras. These Supreme Courts were ultimately replaced by the establishment of the High Courts
under the Act of 1861, which are still running in the country. It was only after independence in
1950 that the Supreme Court of India was established. Reforms and codifications were made in
the pre and post independence eras and are still continuing. Thus law, as we know today has
evolved through a complex procedure which is discussed in detail herein below.
History comprises of the growth, evolution and development of the legal system in the country
and sets forth the historical process whereby a legal system has come to be what it is over time.
The legal system of a country at a given time is not the creation of one man or of one day but is
the cumulative fruit of the endeavor, experience, thoughtful planning and patient labor of a large
number of people through generations.

Therefore, this research project traces the legal history of India with the advent of East India
Company with special emphasis on the establishment of Supreme Courts at Calcutta, Bombay
and Madras.

II. Judicial Administration of East India Company Before 1726

The English East India Company was vigilant enough to protect its interests. 1 When the company
was established, India was being ruled by the Mughal Rulers and Surat (Important Gujarat City)
was an important port because it was linked by the holy places of Mecca and Madecia. The
Britishers also considered Surat an important trading centre and got the permission of Mughal
emperor Jahangir to open an office there in 1612 by the efforts of James-I who sent Thomas Roe
in 1615 as the kings Ambassador and Jahangir issued a farman granting several facilities to the
English like:
1. To trade with Indians
2. To live according to their own religion and customs
3. To settle disputes between them by their own laws i.e. English laws
4. The disputes between -Englishmen and Indian were to be decided by the native Judges
(Indian Judges). 2

The entire control of the factory was under governor also called president and council. The Surat
settlement of the company remained in prominence till 1687. It was because after that, the

1
S.R. Sharma, a Constitutional History of India, pp. 8-19.

2
Dr. KAILASH RAI, HISTORY OF COURTS 1 (5 ed. 2009).
headquarters of the president and council were shifted to Bombay. It is important to note that the
chief officers of the country were adventurers and not gentlemen. They were traders with profit
motive in their mind; they were not lawyers and judges. Naturally the administration of justice
was very poor because of certain drawbacks:
a. There were no established courts for settling the disputes between Britishers.
b. The president of the factory literally had no knowledge of the English Law and there was no
check over his legal rights.
c. The English people exploited the native judicial officers by giving them bribes.

III. JUDICIAL ADMINISTRATION OF MADRAS

After getting encouraging results from Gujarat (Surat), Britishers were looking for new places
for trading purposes and in the race Madras was their second place. How did they get Madras?

The local Raja, a Hindu Chief gave the site to Francis Day in 1639 where he got constructed a
factory (fortified factory-later called Fort George). The local king also gave them adjacent area
to the fort called Madraspatanam to govern. The Britishers and the Europeans who were residing
in the factory area were called the white town and the people residing in the Madraspatanam
were called Black Town and the whole settlement of white town and black town was called
Madras. Let us discuss now the judicial administration of Madras which was divided into 3
stages:
a) 1639-1665
b) 1665-1683
c) 1683-1726

i. First Stage (1639-1665)

As we know the 2 towns i.e. white town and black town were occupied by Europeans and
Indians respectively.
White Town: In the white town the judicial administration was administered by an agent and
council who had no proper legal knowledge and gave judgement by their commonsense and
wisdom and sometimes the cases were referred to England also both in civil and criminal cases.3

Judicial Administration of White Town: Madras became the presidency in 1665 and before that
its judicial administration was carried out by an agent and council in petty civil and criminal
cases while the serious criminal cases were referred to U.K.

Tele-communications were unsystematic and administration of justice was much delayed and
time consuming. Only one incident of an Englishman who was punished under the Anti National
Act can be quoted here. Judicial Administration in Black Town: Old traditional system of Adigar
(Village Head) and his council in the choultry Court was continued for the petty civil and
criminals cases. Serious offences were punished by the English law by the native king. A
dishonest Adigar named Kanappa was dismissed and two company servants captain Martin and
John Leigh were appointed to sit as Judges.

Defects of the Judicial Administration

1. The judicial power of Agent and council was not definite and the serious cases were referred
to U.K. which was very much time consuming.
2. Agent and his council were simple merchants and not lawyers, who had not even the
elementary knowledge of law.
3. There was no separation between the judiciary and the executive.
4. There was no fixed process for the trial of cases and the procedure differed from case to case.

Charter of 1661: For improving the existing system of Judicial Administration Charles-II
granted a charter in 1661 which gave enormous powers to the company. Under the charter of
1600 only the cases of the servants of company could be heard, but by 1661 charter. The cases of
all persons whether they were the servants of the company or not could be heard and decided by
the council. That's why the Agent and council got the title of Governor and council now and the
Indians were also kept under the judicial power of the Governor and Council. The Indian
3
Id pp. 31-43
customs, usages and laws were kept aside by the new charter. We are seeing how the English
were getting power on the Indian soil. The governor and council of each factory were authorised
to hear and decide all types of civil cases and criminal cases and could award any kind of
punishment including death sentence. 4

Defects of Charter of 1661

1. No separation between the executive and the judiciary. The Governor and council were
performing both the works of judiciary and executive.
2. Governor and members of his council were simple merchants and not lawyers who had no
elementary knowledge of English law and used to give justice by their commonsense.
3. Under the charter of 1661 the cases of the Indians were also decided by the English law; hence
the Indian laws and customs could not be protected.

ii. II Stage (1665-1683):

The second stage was definitely an improvement over the 1st stage because more powers were
granted to the company. Madras became a presidency and the status of agent and council rose to
the governor and council.

White Town: The court of governor and council was called High Court of judicature, and
decided all civil and criminal cases with the help of jury. It was also to hear appeals from the
choultry court. It was to decide cases according to the English law and met twice a week. S.
Master was appointed as the governor of Madras in 1678. As we know the II stage was an
advance over I stage but still no machinery existed for dealing with serious offences.

Black Town: There was improvement in the administration of Black town as compared to the
1st stage. The number of judges increased from 2 to 3 and of them 2 had to sit in the court twice
a week. They could hear petty civil and criminal cases up to 50 pagodas and the high court of
judicature was authorised to hear cases from the country court.

4
SIR CHARLES FAWCETT, THE FIRST CENTURY OF BRITISH CENTURY IN INDIA, 220 (3rd ed. 1934).
One important feature of second stage was the charter of 1683 5 by King Charles II because many
independent traders were involved in illegal trading interest. So in order to curb illegal activities
court of admiralty was set up in which learned people of law were appointed to preside over the
court very first time in the legal history of India. The admiralty court was set up on July 10th
1686 in the III stage.

Merits of II Stage
1. Regular meetings of the court started. Both High Court of judicature and choultry court were
to meet twice a week.
2. Jurisdiction of both High Court of Judicature and choultry court was well defined.
Demerits of the II stage
1. The judges of the high court of judicature and the choultry court were not qualified lawyers
but were simple common men who did not have even the elementary knowledge of English law
and they would give judgement according to their commonsense.
2. The serious criminal cases of the company were referred to England which was very time
consuming.
In a case of 31st Jan. 1678, an Englishman was kept behind the bars for 31 months on the murder
charges without trial because his case was referred to U. K. Although the Governor and council
had the power by the charter of 1661 to award punishment for murder they had no legal
knowledge. This is why they referred the case to U.K.
3. There was no separation between the judiciary and the executive. The governor and council
constituted both the judicial and executive authority.

iii. III Stage: 1686-1726 Court of Admiralty:

During this period two important courts, the court of admiralty and the Mayor Court, were
established under the British Crown's charters of 1683 and 1686. The Mayor's Court was
established under the charter of 1687 issued by the company 6, not by the British crown. The need
of establishing the court of admiralty was felt on account of the following reasons:

5
Glimpses of the Justice System of Presidency Towns, 1687-1973
By Mina Choudhuri, Chapter 1(Presidency Towns) PP 58-69
6
A.B. Keith, A Constitutional History of India 1600-1935, pp.11-35.
 a) Under the charter of 1600 the East India Co. was conferred an exclusive trading right in East
Indies including, India, Asia and Africa and no British subject was permitted to carryon trade in
these areas without a license from the company. The right of the company was being infringed
by other' British traders. On account of it the need of the court having jurisdiction to punish such
traders was felt.
b) The crime of piracy (Le. sea dacoity) on the high seas was on increase. To deal with it the
need of a court having jurisdiction to hear and decide the case of piracy was felt.

Court of Admiralty was to hear and decide all mercantile and maritime cases concerning persons
within the charter limits of the company. It was also to hear and decide all cases of forfeiture of
ships, piracy, trespass, injuries and wrongs. It was to decide cases according to the values of
equity etc.

The provisions of the charter of 1683 were repeated by the British crown in another charter
granted in April, 1686. The charter of 1686 however modified the provisions of the charter 1683
regarding the charter of admiralty to some extent.

The judicial administration in 1687 may be appraised for the following good features:
a. The separation between executive and the judiciary was maintained. The governor and council
had executive power only they had no judicial power. The judicial power was exercised by the
court of admiralty.
b. Before the establishment of the court of admiralty the judges were laymen. As a result, they
used to decide cases according to their wisdom of commonsense. But after the establishment of
the court of admiralty, the administration of justice came in the hands of professional lawyers.

IV. JUDICIAL ADMINISTRATION AND DEVELOPMENT OF COURTS AND

JUDICIAL INSTITUTION IN BOMBAY BEFORE 1726
The island of Bombay was acquired by the Portuguese from the King of Gujarat in 1534. In 1661
this Island was transferred by the Portuguese king to the British crown as a dowry on the
marriage of his sister. In 1668 the British crown transferred this Island to the East India
Company for eminent of £10.
The administration of justice and development of courts and judicial institution in Bombay
before 1726 may be studied in the following stages:
First Stage: 1670-1683: At an early stage Bombay was under the control of smart Presidency.
The Governor of the Surat Factory was ex-officio Governor of Bombay. Gerald Aungein was the
Governor of the Surat Presidency and he was the ex-officio Governor of Bombay also. He was
much more interested in introducing a sound judicial system in Bombay. Due to his efforts, the
judicial plans of 1670 and 1672 were made to improve the judicial system in Bombay.

i. Judicial Plan of 1670:

According to the judicial plan 1670, the whole Island of Bombay was divided into two divisions-
One division consisted of Bombay, Mazagoan and Gingoan, while the other division consisted of
Mahim, Parel, Soin and Worly. A separate court was established for each division. Each court
consisted of 5 judges. The court was empowered to decide cases of small thefts and civil actions.
An appeal from the court of each division could be heard by the court of Deputy Governor of
Council. Thus the Deputy Governor of Council constituted a Superior court.

Defects
1) The lawyers and judges were the simple laymen there for own common sense and not ace to
English law.
2) No separation between executive and judiciary. Aungier was aware of these defects. He
selected Mr. George Wilcox and with his advice and cooperation prepared a new judicial plan
known a judicial plan of 1672, for improving the existing judicial systems in Bombay.

i. First Stage: 1670-1683

Judicial Plan of 1672.

Under the judicial plan of 1672 the whole judicial system in Bombay was emerging. A new
court, known as the court of judicature was establishment. George Wilcox was appointed as the
Judge of this court. The court of judicature was empowered to hear and decide all civil criminal,
probate and testamentary cases. The court was to sit once a week to try civil cases. Besides this
plan, a court of conceive was created to decide petty civil cases up to 20 xeraphias.

For the purposes of administration of criminal justice, under this plan, Bombay was divided into
divisions: Bombay, Mahim, Mazagaon and Sion. In each division a justice of peace was to be
appointed. He was to be an Englishman. Justices of peace were to act not as a court but as
committing magistrates to arrest the accused and to examine the witness and thereafter they were
to send the record of this examination to the court of judicature which was to sit once a month to
try criminal cases with the help of jury.

Merits
1. Under the plan regular courts with well defined jurisdiction were established. The courts were
to sit regularly.
2. The civil cases were to be decided by the court of judicature with the help of jury.
3. The administration of justice was inexpensive.
4. The laws and procedures to be followed by the courts were settled. It was made clear that
these courts would follow the English procedural law as far as possible.

So long as Aungier was governor the judiciary was paid much respect but after him the later
governors could not follow the same tradition and the judiciary was considered subservient to the
executive.
The rebellion against the company in 1684 was suppressed by it. So long as the Island of
Bombay was under the control of Keingwin's rebellion, the company's court stopped functioning.

ii. Second Stage: 1684-1690

In 1684, the company made every possible effort to set up, as early as possible, regular judicial
system at Bombay. When Keingwin's rebellion surrendered the Island of Bombay to the
company in 1684 a court of Admiralty was established in Bombay under the charter of 1683. The
court was established to decide admiralty and maritime cases but later on it began to decide civil
and criminal cases also. Dr. St. John was appointed as judge-advocate of the admiralty court. He
was considered to be an expert in civil law. The authority of the admiralty was not sufficient to
cover all civil cases. A court of judicature was established, Dr. St. John was authorised to act as
the chief Justice of the court of judicature also. Dr. St. John was inspired by the spirit of judicial
independence which caused much annoyance to the Bombay council and the Governor.

A new court with Voux as the judge was established to decide civil and criminal cases. Dr. John
criticised the appointment of Voux as judge of the new court. Again the conflict between Dr.
John and council began. Ultimately in 1687 he was dismissed from his office. After his dismissal
the Deputy Governor of Bombay became the Judge of the admiralty court. In 1685 Voux was
appointed judge of the admiralty court also and he remained in the office till 1690. In 1691 Siddi
Yakub, admiral of the Moghul Emperor attacked Bombay and due to it the judicial systems of
Bombay came to an end. From 1690 to 1718 there was no court in Bombay and Governor-in-
council used to decide cases in a rough manner.

iii. Third Stage: 1718-1726:

On 25th March, 1718 the court of judicature was restarted. The court of judicature consisted of
an English Chief Justice, five English Judges and four Indian judges. The four Indian judges
represented the four principal communities, namely, Hindus, Mohammedans, Portuguese,
Christians and Parsis.
The chief justice and English judges were members of the Governor's council. The court was to
sit once a week. The court of judicature was empowered to decide all civil, criminal and
testamentary cases. It was conferred with probate and administrative jurisdiction also. The cases
were to be decided by it according to law, equity and good conscience.

Merits
1. From 1690 to 1718 there was no court in Bombay and therefore the establishment of a court in
1718 was itself an important event.
2. The appointment of Indian judges was also a good feature of the judicial systems established
during this period.
3. The administration of justice was cheap and speedy. The court fee was moderate.
Demerits
1. The whole judicial administration was executive oriented. The judiciary was kept under the
thumb of the executive.
2. The laws and procedures to be followed by the court were not settled.
3. No provision was made for jury trial.
4. The status of the Indian judges was not equal to English judges.

V. THE ADMINISTRATION OF JUSTICE AND DEVELOPMENT OF COURTS

AND JUDICIAL INSTITUTIONS IN CALCUTTA BEFORE 1726
In 1690 some Englishmen landed at Sutanti on the bank of river Hooghly and constructed a
fortified factory, named as Fort William. In 1698 Subedar of Bengal granted zamindari rights of
three villages Calcutta, Sutanati and Govindpur to the East India Company.

After this grant the status of the company was raised to that of zamindars and the company was
entitled to exercise all those powers which were exercised by the zamindars. Company acquired
even the judicial powers also. In 1700 an English officer known as collector was appointed to act
as zamindar on behalf of the company. He used to be a member of Governor and council. The
collector used to decide civil cases in a summary manner. The appeals from the collector court
would be heard by the Governor and council. The petty civil cases pertaining to the English
people could be decided by the Governor and council. The collector was also responsible for the
revenue cases and criminal cases. Whipping fines, imprisonment and work on road were the
important punishments awarded by the collector in such cases.

Defects
1. The administration of justice was not of high order. The collector was over-empowered. He
was to collect revenue and also decide civil, revenue and criminal cases. He paid more attention
to the collection of revenue than to the administration of justice.
2. The whole judicial administration was executive oriented. The collector, an executive officer,
was vested with the judicial power also on. We can say that there s no separation between the
judiciary and the executive. The judicial systems continued till 1727, when Mayors court was
established under the charter of 1726 and this judicial system was replaced by a new judicial
system.

VI. MAYOR’S COURTS AND JUDICIAL ADMINISTRATION AFTER 1726

In 1726, the Mayor and Aldermen of Bombay, Calcutta and Madras, constituted civil courts for
the Company's European servants in India. Appeal lay from their decisions to the President and
Council and finally to the King-in-Council. These courts admitted wills and granted probates. To
deal with criminal cases the Presidents and Councils were exalted into 'Justices of the peace and
commissioners of oyer and terminer and gaol delivery'. As such, they met every quarter to deal
with petty offences and determined such other cases as were brought before them. The authority
of the courts was confined to the factory towns alone.

The Royal Charters of 1723 and 1726 empowered the English East India Company to set up a
Mayor's Court at Calcutta. A Sheriff and nine nominated persons were to make the Court of
Mayor and Aldermen, to try all criminal cases. It was to be a court of record. Appeals from the
decisions of the Mayor's Court went to the President and Council. Under certain conditions,
appeal lay to the Privy Council. Three of the judicial members of the Mayor's Court were
regarded as the quorum for hearing, trying and determining all civil cases. When vacancies
arose, the Court elected its own alderman. In the absence of the Mayor, the senior most
Alderman took the chair7. The President and Council were vested with the authority of
appointing and dismissing judges, who in turn, exercised their judicial functions at the pleasure
of the former. The President and Council were authorized to appoint the Sheriff, the Registrar
and the Accountant General of the Mayor's Court. All these incumbents were liable to removal
by the said authorities. The Aldermen of the Mayor's Court were liable to be dismissed by the
President and Council. However, they could approach the Court of Directors or even the Privy
Council for their reinstatement.

7
A.C. Patra, The Administration of Justice under the East India Company in
Bengal, Bihar and Orissa, pp.33-41.
Jurisdiction of Mayor’s Courts

The Mayor's Court was mainly engaged in cases of will probate administration, contract and
debt. The Court used to dispose of the cases as quickly as possible and only in rare cases did the
litigation become prolonged. The Mayor's Court made it compulsory for the Indians to engage
lawyers for the conduct of their business in the Court. Failure on part of the defendant to engage
an attorney was treated as contempt of the Court. The Mayor's Court kept a strict vigilance over
the conduct of the attorneys practicing at the Court. They could not resign or absent themselves
for the court for a considerable period of time without the leave of absence granted for the
purpose. The Court engaged attorneys for the persons who pleaded poverty having no resources.

Commissions were issued to respectable officers of the Company to examine witnesses and to
take depositions at their places of business. Arbitration was often resorted to. Arbitrators were
asked to abide by the directions of the Mayor’s Court. Appeals were to be filed within fourteen
days from the reading of the decree. As a matter of discretion the Court could extend the time for
appeal. The judges of the Mayor's Court when dissenting could get their dissent recorded, but not
their reasons of dissent at large, at the margin of the official register. As a counterpart of the
Mayor's Court (which a civil causes court), the President and five of the senior Councillors at
Fort William were empowered and directed to work as Justices of the peace and commissioners
of oyer, terminer and gaol delivery, holding quarter sessions and hearing, trying, determining and
punishing all criminal cases. The Mayor's Court held its sitting in the last part of its life in the
Town Hall of Calcutta. The Court founded at Calcutta in 1727 and re-chartered in 1753 8, worked
for about fifty years.
An Act passed in 17549 authorized the Court of Directors to empower the Company's
Presidents and Councils and the Commander-in-Chief, the right to assemble and hold courts-
martial for dealing with military offences. An appeal against the decision of the local courts-
martial lay to the King's Court in England. Till 1765, the Europeans outside factory towns of
Bengal were liable to be tried in the Nawab's Court. However, this became impossible after the
British victory at Buxar. As a result, the English servants of the Company outside the factory
towns could be tried only in England. The immunity of the servants of the Company from the
8
Supra note2 pp.35-39
9
Ibid Pp.36-38
jurisdiction of the Nawab's Court was soon extended to their Indian agents and servants. This
produced complete judicial anarchy in Bengal, Bihar and Orissa. The judges of the Mayor’s
Court were bound to work according to the laws of England, at least with respect to the
Europeans. Unfortunately they had little knowledge, education or training in those laws. They
were ordinarily junior servants of the Company.

State of Affairs in Madras and Bombay

In Madras, the Mayor and Aldermen constituted a civil court while the former and three senior
Aldermen were Justices of peace with criminal jurisdiction. Appeals went to the Admiralty
Court. The power of this Court to inflict capital punishment was conceded by the Council in
1712. The Admiralty Court existed between 1688 and 1689 and from 1692 to 1704. In the
interim period a temporary court of the Governor and four justices, held sway. After 1704, the
admiralty jurisdiction was exercised by the Governor and Council. It also heard appeals from the
Mayor's Court. The Mayor’s Courts erected under the authority of the Company were superseded
by the Mayor's Court, established under the Charter of 172610.

After considerable chaos for some time, orderly judicial procedure was restored in Bombay, by
1716. A new Court of Judicature was established. It was composed of the Company's servants
including four Indians, representing the Hindus, Muslims, Portuguese Christians and the Parsees.
Three English judges were to sit for cases between Englishmen. The jury system was absent. The
Court of Bombay exercised wide jurisdiction in both civil and criminal matters. Capital
sentences were referred to the Governor and Council. The Court of 1718-28 differed from that of
1672-90. The latter was definitely constituted by the laws of the Company while the former was
established by the order of the Governor and Council. The earlier Court used juries while the
new one was essentially a Company's Court as the Bench consisted mainly of members of the
Council. However, it was an improvement on the haphazard system of 1698-1718 and it paved
the way for the birth of the Mayor's Court in 1728. When the Mayor's Court asserted power, it
led to a dispute in 1730 with the Council, which denied its right to deal with issues of religion or
caste. The Mayor was dismissed from his post as Secretary to the Council as punishment for his
insistence on his judicial independence. Fortunately, the Company upheld the authority of the

10
LOVE, VESTIGES OF OLD MADRAS 440 (2nd ed. 1998).
 Court against the Council. The Mayor and Aldermen as grand jury were able to express their
views freely to the Governor and Council.

VII. REGULATING ACT, 1773

A giant leap in Indian legal history was taken with the creation of the Supreme Court of
Judicature at Calcutta under the Regulating Act of 1773.11 The company servants made lot of
money in India, when they went to UK, they started to live lavishly and even they bought the
seats of House of Commons. Lord Clive had decisive success in the battle of Plessey 1757. The
East India Company became the Supreme Authority in Bengal. It kept the Nawab on the throne
of Bengal but he exercised limited powers. The Nawab failed to give a good administration. The
Famine of 1770, financial shortage etc., added to the trouble. The population of UK started to
doubt the working of East India Company in India. Similarly, the shareholders of the company
voted and started to get the big dividends. From the year 1767, it was the rule that company will
pay to the British exchequer, four lakh pounds every year to retain its territorial acquisitions and
revenues. 12

When the company was making losses, it approached the 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 the company the loan amount. The reports suggested that
Company should be brought under the British parliament and reports mentioned the evils of
company affairs. After this the Parliament enacted the Regulating Act, 1773 to remove the
prevailing evils. The Regulating Act was passed for the better management of the affairs of the
Company in India as well as at Home. The aim was to prevent particularly various abuses of the
Government and of the administration. The Act provided for the appointment of a Governor-
General and four councillors, for the Civil and Military Government of the Presidency of
Calcutta. Parliament amended the constitution of company, brought company under the
parliament. Subsequently with this advancement, the era of parliamentary enactments started.13

11
B.B. Misra, The Judicial Administration of the East India Company in Bengal
1765-1782, pp.4-132.
12
Supra note1, at. 224.

13
V.D. KULSHRESTHA, LANDMARKS IN INDIAN LEGAL HISTORY 112 (9 ed. 2009).
VIII. PROVISIONS OF REGULATING ACT
 The term of the Directors of East India Company was increased from one year to 4 years
and a 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 of the Government of in 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 acquisitions as well
as revenues in the kingdoms of Bihar, Bengal and Orissa.
 Warren Hastings was appointed as the first Governor General and other three came from
England.
 All were to hold office for 5 years but king could remove them if Court of directors
recommended the removal. The Governor General got only one vote and casting vote in
case of tie.
 Governor General did not get the power to overrule the majority vote. Because of this,
the other three council members always opposed the policies of Warren Hasting and in
the first six years Warren Hasting found it very difficult to introduce new laws or
policies. In the year 1776, one member from the council died and Warren Hasting
became powerful because of the casting vote. Only in the year 1786, did the governor
14
general get the right of veto to override the decision of council.
 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 to 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. Because of this Madras and Bombay
presidency always took the decisions without fearing governor general.15

14
Supra note2 at. 54
15
Indian Legal History 2006, By M.P Jain, Chapter VIII(Supreme Court at Calcutta)
IX. ESTABLISHMENT OF SUPREME COURT AT CALCUTTA (1774)
The Supreme Court of Fort William was the result of section 13 of the Regulating Act, 1773.A
Charter of Justice in this regard was issued on 26 March, 1774. The Court established in 22
October, 1774, began functioning during January 1775.16 It consisted of a Chief Justice and three
judges who were to be Barristers in England or Ireland of not less than five years standing. It was
declared to have fully power and authority to excise and perform all civil, criminal, admiralty
and ecclesiastical jurisdiction. The new court was to have jurisdiction over all British subjects
residing in Bengal, Bihar and Orissa. The Governor General and Council, the Chief Justice and
judges of the Supreme Court were empowered to act as Justices of Peace for the settlement of
Calcutta and the subordinate factories.

The Governor General and Council held quarter session, four times a year. These quarter
sessions were a court of record. All offences and misdemeanours which were laid in the Supreme
Court were tried by a jury of British subjects resident in the town of Calcutta. The Supreme
Court was not competent to hear, try or determine any indictment or information against the
Governor General or any of the members of the Council for any offence except treason or felony
committed by them in Bengal, Bihar and Orissa. Only the Kings Bench was competent to try the
Governor General, his councillors, the Chief Justice and the other judges. The Court of the
King's Bench in England was empowered to inquire into and determine any crime,
misdemeanour or offence committed by the Governor, a judge of the Supreme Court or any of
the English servants or subjects or any of the inhabitants of India. As a result the Court of the
Kings Bench was enabled to issue the writ of mandamus on the judges of the Supreme Court of
Calcutta, for the examination of witnesses in India and to send such records to England. The
Court of the Kings Bench could likewise require the Governor General in Council, to examine
witness in India and send the records to England when causes of action involved the Chief
Justice and other judges of the Supreme Court.

X. Act of Settlement

16
Ibid Pp. 233-237
The Act of Settlement, 1781 effected important changes in the then system of judicial
administration. It was enacted that the Governor General-in-Council were not to be subject to the
jurisdiction of the Supreme Court. Further the Court was not to have any jurisdiction in any
matter concerning the revenue collection. The Supreme Court was authorized to frame suitable
forms of process to be used in native causes. The Governor General in Council exercised
appellate jurisdiction through the Sadr Diwani Adalat. It was authorized to deal with revenue
collection. No jury was allowed in such cases.

The Act of 1781 clearly defined the jurisdiction of the Supreme Court and the legislative and
administrative powers of the Governor General and Council. As far as revenue matters were
concerned, only the excesses committed in its administration were cognizable by the Supreme
Court. In 1793, revenue administration was divorced from judicial functions. Zilla Courts each
presided over by an English judge came into being. Appeals from these courts lay to the
provincial courts of appeal at Calcutta, Patna, Dacca and Murshidabad. The Sadr Court consisted
of the Governor General and Council. Appeals arising from its verdicts went to the King in
Council. The judges of the provincial courts sat in the court of circuit, which were four in
number. Their sentences of death or imprisonment for life required the approval of the Sadr
Nizamat Adalat under the Governor General and Council. The right of pardon remained with the
Governor General and Council.The Chief Justice and judges of the Supreme Court were
forbidden to accept directly or indirectly any present, gift or donation on any account what so
ever. They were also not to indulge in any traffic or commerce. The jurors of the Supreme Court
were appointed by the King unlike those of the Mayor's Court who were appointed by the
Executive Government of Fort William. The Supreme Court was also competent to render justice
against the English East India Company. This was simply impossible under the Mayor's Court.
The judges of the Supreme Court were to be, unlike those of the Mayor’s Court, Barristers in
England or Ireland. In April 1777, the office of the Advocate General was created and Sir John
Day was appointed to the post.17

17
BANKEY BIHARI MISRA, THE CENTRAL ADMINISTRATION OF THE EAST INDIA COMPANY 1773-1834, 38-41(1st ed.
1959).
XI. Charter Act of 1833
The Charter Act of 1833 declared the Indian possessions of the Company to be held by it in
trust for the British Crown. Administration became centralized. The Governor General of Bengal
gave place to the Governor General of India. Centralization was most marked in the matter of
law. Bombay and Madras lost their right to make their own laws. The Governor General in
Council reinforced by the fourth ordinary member with legal qualifications became the only law-
making body in India. These laws were applicable to all things and persons in British India, and
in the case of servants of the Company, anywhere in allied India. They were enforceable in all
the courts in India, the Company's or the Kings. On the eve of the National Uprising of 1857,
there were three Supreme Courts, at Bombay, Calcutta and Madras. They consisted of a Chief
Justice and two judges, each. They administered English law or such Indian law as was made
applicable to the British subjects in India. Indians in the Presidency towns were subject to these
courts. These courts soon degenerated into tools of racial discrimination. The British subjects of
the Crown could be prosecuted only in the courts set up at presidency towns. The Supreme
Courts acted as the highest court of appeal in India for such cases. This system practically denied
justice to an Indian in cases against a European. In criminal matters, Englishmen and Indians
were subject to different courts and to a different procedure.

XII. JURISDICTION AND POWERS OF SUPREME COURT AT CALCUTTA

1. Civil Jurisdiction:-Supreme Court had original jurisdiction in civil matters. The jurisdiction
in the civil matters extended to the following entities:
i. The East India Company and the Mayor and Alderman of Calcutta
ii. His Majesty’s subjects and British subjects residing in Bengal, Bihar and Orissa;
iii. Any other person directly or indirectly under the employment or service of the
Company of his Majesty’s subjects
iv. Personal Inhabitants of India, residing in Bengal, Bihar and Orissa if they had
made a contract or entered into an agreement in writing with any of his majesty’s
subjects to refer their disputes to the Supreme Court provided the amount
involved in the cause of action exceeded Rs. 500.
2. Criminal Jurisdiction: - The Supreme Court was made a Court of Oyer and Terminer and of
Gaol Delivery in and for the town of Calcutta and Factory of Fort Williams and the factories
subordinate thereto. It was given all the powers to probe into cases of treasons, murders, felonies,
trespasses, forgeries and misdemeanours. It could also hear, determine and judge all such crimes
and oppressions in any part of provinces of Bengal, Bihar and Orissa by His Majesty’s Subjects
or by a person (directly or indirectly) in the service of the Company or his Majesty’s subject. It is
notable that the Supreme Court had no jurisdiction over all the native inhabitants of Calcutta and
of Bengal, Bihar and Orissa.
The Supreme Court was not empowered to try the Governor General and the members of the
council for any offences except treason and felony. Neither could they be arrested or imprisoned
in any action or suit except in the case of treason or felony.
Supreme Court was able to suspend the execution of capital sentence if in its opinion there was a
roper occasion for mercy until the pleasure of the crown was known.
3. Ecclesiastical Jurisdiction:- The ecclesiastical jurisdiction was yielded over the British
subjects residing in Bengal, Bihar and Orissa. Such a jurisdiction was exercised in accordance
with the ecclesiastical law prevailing in the diocese of London. It meant that the Supreme Court
of Calcutta could grant probates of wills to the British subjects within the territories and also
letters of administration for the goods, chattels and other effects of British subjects dying
intestate or without appointing executors for their wills. The court also yielded the power to
appoint guardians and keepers for infants and insane persons and their estates.

4. Admiralty Jurisdiction:- The Supreme Court was declared to be of a court of Admiralty for
the territories of Bengal, Bihar and Orissa. This meant that the Supreme Court at Calcutta could
hear and try all cases civil and maritime, and all maritime crimes committed upon ships, ferries,
vessels and offences committed on the high seas and off shores of Bengal, Bihar and Orissa, with
the help of a petty jury consisting of British subjects residing in Calcutta.
5. Equity Jurisdiction:- The newly proposed Supreme Court was also a court of equity. It was
conferred full powers to administer justice in a summary manner according to the rules and
proceedings of the High Court of Chancery in England. This incorporated the principle that the
court was not bound by any technicalities of law and could deliver justice according to the
principles of justice, equity and good conscience.
6. Writ Jurisdiction: - The Courts of Collector, Quarter Sessions, Court of Requests, Sheriffs
etc. were put under the control and supervision of the Supreme Court. It could issue writs of
 certiorari, Mandamus, error or procedente to these Courts. This Jurisdiction or power was given
to the Supreme Court so that it could effectively control the subordinate courts and other
authorities of the company engaged in the administration of justice in Bengal, Bihar and Orissa.18

XIII. PROCEDURE FOR APPEALS

Appeals, both from the Supreme Courts and the appellate civil and criminal courts of the
Company went to the Privy Council, when the value of the suit was five hundred pounds or
where special leave to appeal had been obtained. The Privy Council had 31 succeeded to this
appellate jurisdiction originally vested in the King’s Court in 1813. Not many appeals were taken
to England.
In criminal cases the appeals from Supreme Court could be represented to the King-in Council
with the permission of the Supreme Court but in respect of such appeals the Supreme Court had
full power and discretion to allow or deny the permission for such appeals.
Besides, the King-in-Council reserved the right to refuse or admit an appeal as a special case
upon such terms and conditions as it thought fit.19

XIV. SOME DEFECTS OF THE NEWLY ESTABLISHED SUPREME COURT

1. Vagueness and serious omissions of the Law to be applied created serious consequences.
What law was the Supreme Court to administer? The Regulating Act of 1773 was silent.
Apparently it was the English Law which was insular, technical, formless, tempered in
its application to English circumstances only. To whom was that law to be applied? To
British subject and to persons in the employment of the Company? But the point was by
no means clear. All these gave rise to conflicts between the Supreme Court and the
Supreme Council (Government)
2. It was also not made clear, whether the company in its Diwani (Revenue) capacity was
subject to the jurisdiction of the Supreme Court. The Company considered itself immune
from the jurisdiction but the Supreme Court held that it had jurisdiction. This led to
complicated cases.

18
Outlines of Indian Legal & Constitutional History
By Mahendra Pal Singh, PP 36-41
19
Dr. M.P. JAIN, INDIAN LEGAL HISTORY, 181(5th ed. 2007).
 3. It was not clear whether the Zamindars who collected revenues were the servants of the
company. The Supreme Council (i.e., Govt.) had held that they were immune from
Supreme Court's jurisdiction. This also led to serious litigation.
4. The Supreme Court followed its own procedure in administering criminal law. Many
offences were punishable with death. This was oppressive, as there was no promulgation
of the law.
5. There was much disharmony between the Governor-General in Council and the
Supreme Court. The Supreme Court had no jurisdiction to hear indictment of the
Governor General.20

XV. Leading Cases

i. TRIAL OF RAJA NAND KUMAR CASE (1775): THE JUDICIAL MURDER

EVENTS BEFORE THE TRIAL

The trial of Raja Nand Kumar was the first decisive event during the early stage of the growing
bitterness between the Supreme Court and the council. Its significance lies in the fact that the
judges of the Supreme Court introduced English laws and procedure into India, laws which were
unknown to the Indians. Raja Nand Kumar was once a governor of Hughli under the
Sirajuddaulah and later due to the loyalty for the British he was nicknamed “black colonel”. But
his relations with Warren Hastings soon became estranged and he gave a letter of complaints to
the council. The council by majority dismissed raja nand Kumar and found that the charges
levelled by him against the governor-general warren hasting are true.

FACTS OF THE CASE

After some time the raja was arrested for hatching the conspiracy at the instance of the governor-
general, Warren Hastings declared their intention before the judges of the Supreme Court to
prosecute Nand Kumar. This event led the people to think that with a retaliatory motive this step
20
A Constitutional History of India, 1600-1935
By Arthur Berriedale Keith, Chapter 1 (The Company before Plassey; It’s Constitution, Relation to Indian States and
the Administration of its Territories and Settlement)
was being taken against Nand Kumar to ruin and disgrace him. The trial of Nandi Kumar for
conspiracy continued together with another trial of his for forgery. The defence council first of
all advanced a plea as to the jurisdiction of the Supreme Court.

TWO IMPORTANT QUESTIONS RAISED IN THE TRIAL

Whether Nand Kumar was under the jurisdiction of the court?
Whether the English act of 1729 which made forgery a capital offence and under which the raja
was executed, was extended to India?

Objections - regarding to the first question, the Indians were tried by their own men in their own
local criminal courts. In this case as the offence was committed before the advent of the Supreme
Court, Nand Kumar could be tried only by the faujdari adalats and not by the supreme council.
Regarding the second question on the applicability of the act of 1729 chambers were of the view
that that the English laws were made to suit their own requirements and that these laws should
not be applied to India. The other judges were of the view that the English statute of 1729 was
being practiced by the courts prior to the formation of the supreme court and whenever the king
introduced a law under the conquered dominion, all such laws as were being practiced in
England ,becomes the laws of the dominion also.

Peculiar features of the trial.

 Charge against Nand Kumar was made, after he had levelled the charges against Warren
Hastings.
 Impey was a close friend of Warren Hastings.
 The judges cross-examined the witnesses themselves.
 His petition to the king’s council was rejected by the Supreme Court.
 Neither the Hindu nor the Muslim law regarded forgery as a capital crime.
 The raja committed the offence nearly five years ago i.e., before the establishment of the
Supreme Court.
 The raja was sentenced to death under the English statute of 1729 on a charge of forgery
but this act was not applicable to India because English law introduced in India in 1726
and not in 1753
Hence the trial of Nand Kumar was very controversial and it not only shocked the Indians but
also the Britishers living in India. It was considered most unfortunate and unjust. The role of the
chief justice Impey became a target of great criticism. On returning to England Warren Hastings
and Impey were impeached by the House of Commons.21

ii. KAMALUDDIN CASE (1775)

FACTS AND DECISIONS

This case represents the first open difference of opinion between the court and the government
over the question of the Court’s control of Diwani functions.
Kamaluddin was an ostensible holder of a salt farm at Hijili, on behalf of kanta babu, who was
the real farmer. In 1775 Kamaluddin was committed on the ground of arrears of revenue due
from him, the claim of which he disputed. On this basis revenue council at Calcutta issued a writ
for Kamaluddin’s committal without bail. Kamaluddin obtained habeas corpus from the Supreme
Court, which set him free. The judges further stated that kamaluddin should not be imprisoned
again until his under-renter had been called upon to pay the arrears and had proved to insolvent.
CONFLICTS
 The members of the council stated that the Supreme Court cannot deal with the cases of
revenue as was being highlighted in the regulating act of 1773.
 The council therefore ordered the provincial council to re-arrest Kamaluddin and pay no
attention to the Supreme Court order. But the governor-general warren hasting refused to
support the council members.

The case of Kamaluddin was an eye opener disclosing defective provisions of the regulating act
due to which not only the supreme court and the supreme council came into the dispute but also

21
Supra note2 Pp. 73-74
the gulf between the governor-general Warren Hastings and three members of the council ,who
constituted the majority, gradually became wider and wider.

iii. THE PATNA CASE (1777-1779 A.D)

This case revealed the weakness and defects existing in the methods of administering justice by
the company’s judicial system in the Moffusil.
ISSUES INVOLVED
 A question arose about the jurisdiction of the Supreme Court and the right of the
Supreme Court to try actions against the judicial officers of the company for an act done
in their official capacity.
 Whether the provincial Diwani Adalats which consisted of the members of the provincial
council legally constituted the courts of justice.
 The judgment of the Supreme Court not only provoked the members of the council but
also create panic among the local population of Calcutta.
FACTS
Shahabaz beg khan, an afghan military adventurer came to India from Kabul. He settled at Patna,
married Nadirah Begum and earned a large amount of money. When he died there was a dispute
of property between his wife and his nephew Bahadur Beg. Bahadur Beg took the case to the
provincial council at Patna praying that the Muslim law officers of the council mufti and qazi
may be directed to ascertain the petitioner’s right over the property of the deceased. The
provincial council instead of deciding the case passed it over to the Muslim law officers. The
Muslim law officers carried out the directions of the provincial council very harshly while
dealing with the widow. The widow being afraid fled from her house with some of the title deeds
and her female slaves and took shelter in a Dargah. The Muslims law officers divided the
property into four parts .three parts were given to the nephew and the fourth part was given to the
widow. The widow declined to accept the judgment and to hand over her title deeds. She also
refused to return to the family from Dargah. After tolerating harassment for few months the
widow appealed to the Sadar Diwani Adalat against the decision of the provincial council, but
the former took no notice of her appeal. The widow filed the suit in the Supreme Court. The
Supreme Court ordered the arrest and posed a fine on nephew, qazi and mufti against whom the
widow filed a petition. 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.
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.

IMPORTANT POINTS RAISED BEFORE THE SUPREME COURT

1. In what sense Bahadur Beg and native law officers were subject to the jurisdiction of the
Supreme Court?
2. Second point was related to the liability of the judicial officers who acted under the
delegated authority of the provincial council.

As far as first case is concerned, the charter act of 1774 was not clear in laying down the
jurisdiction of the Supreme Court. It was also not provided that the court shall have jurisdiction
over the zamindars and over any person by virtue of his interest in or authority over lands or rent
within Bengal, Bihar and Orissa.
Both the parties were Muslims to which the Muslim law of inheritance should be applied.
There was no written agreement between the parties to submit the case to the Supreme Court.
As far as second issue is concerned, the provincial council has no right to delegate to its law
officers the hearing of the suit and to give decision upon the basis of a mere report.

EFFECTS OF THE ABOVE CASE ON THE COMPANY ADMINISTRATION

 The fact of the case and decision of the Supreme Court exposed the weakness of the
company’s administrative machinery in India.
 It pointed out the deteriorating state of the administration of justice in the country.
 It also proved that the Moffusil courts under the company’s control failed to impart
justice to the Indians.
  Another important reaction of the case was that the local zamindars refused to accept the
work of revenue collection for the company. They became afraid of the jurisdiction of the
Supreme Court.
 The case was directly responsible for many provisions of the act of settlement which was
passed in 1781 A.D so as to remove the evils of the Regulating act.22

Another famous case is Cossijurah’s 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 sent forces to stop the Supreme Court forces. This case is
landmark case as Supreme Court and Executive, government came to fight with each other. 23

XVI. SUPREME COURTS AT MADRAS AND BOMBAY

A rudimentary system of judiciary was established in the Presidencies of Madras and Bombay
via the Charter Act of 1753. This system needed changes and there was an urgent need of new
lawyers and judges to deal with the increasing cases. The Madras Council had brought this
matter to Court of Directors in East India Company in 1791 which in turn brought in notice of
the parliament. Via the Act of 1797, the British Parliament authorized the Crown to issue
charters for the purpose of establishing a Recorder’s Court at Madras and Bombay. On February
1, 1798, the King issued charter and two Recorder’s Courts were established in Madras and
Bombay by the end of that year. Each Recorder’s court was made of one Recorder, one Mayor
and three Aldermen of the Corporation. The Recorder, who used to be a barrister with at least
five years standing, was appointed by the Crown and was the President of the Recorder’s Court.
The jurisdiction of the Recorder’s Court was almost same as that of Supreme Court of Calcutta.
They were able to entertain all civil, criminal, admiralty, maritime, ecclesiastical and equity
cases. Like the Supreme Court of Calcutta, this court was also subject to few restrictions such as:
 It could not entertain the matters related to Governor-General and Council in their official
capacity.

 The matters relating to Hindus and Muslims were to be decided by their own laws.

22
Supra note2 Pp. 83-88
23
Supra note2 Pp. 91-95
 Appeals against the judgments of the Recorder’s Court could be filed before the Privy Council
under the same conditions as they could be filed against the judgment of the Supreme Court. In
this way, except the composition, the Recorder’s courts at Madras and Bombay were replica of
the Supreme Court of Fort Williams at Calcutta.24
The recorders court had hardly functioned for two years that the British Parliament decided to
change them into Supreme Courts. As per this, the Parliament Passed Act of 1800 to authorize
the Crown to establish a Supreme Court at Madras. On 26th December, 1800 King George III
issued a Charter which established the Supreme Court at Madras. This court came into existence
on 4th September, 1801. However, in Bombay, the Recorder’s Court functioned till 1824. In
1823, the Parliament had authorized the Crown to establish the Supreme Court by a Charter and
accordingly, the King issued a Charter on 8th December, 1823 establishing a Supreme Court at
Bombay which came into being on 8th May, 1824.

XVII. POWERS AND FUNCTIONS OF SUPREME COURTS AT MADRAS AND

BOMBAY

The Constitutional powers, function, limitations and jurisdiction of the two courts established at
Madras and Bombay were the same as that of the Supreme Court at Calcutta. The Act of 1823
had specifically mentioned in section 17 that the Supreme Court at Madras and Bombay, shall
have the power to do, execute, perform and fulfill all such acts, authority, duties, matters and
things whatsoever as the Supreme Court at Fort William might be authorised or empowered to
do, execute, perform and fulfill within the Territory of Fort William in Bengal or places subject
to or dependent upon its Government. This provision placed the three Supreme Courts in the
same position.
These Supreme Courts functioned until 1862 when they were replaced by the High Courts at all
the three places.25

24
The History and Constitution of the Courts and Legislative Authorities in India
By Herbert Cowell, pp-94-98
25
Report from the Select Committee of the House of Commons on the ..., Volumes 4-6
By Great Britain Parliament, House of Commons. Select Committee on the East India Company, pp. 216 - 218