A

PROJECT
ON
Establishment of Supreme Court Calcutta
(Legal and Constitutional History)

Submitted as a partial fulfilment of the requirements

for
B.A. LL.B (HONS) 5 Year Integrated Course

Session: 2021-2022
Submitted On:

Submitted By: Submitted to:

ARNAV LEKHARA Ms. TANYA AGARWAL
Roll No. -15
Semester -1 Sec on -A

University five year law college

University of Rajasthan,
Jaipur
1

ti

 Declaration

I, ARNAV LEKHARA, hereby declare that this project titled

"Establishment of Supreme Court Calcutta” is based on the original research
work carried out by me under the guidance and supervision of
Ms. Tanya Agarwal.

The interpretations put forth are based on my reading and understanding of

the original texts. The books, articles and websites etc. which have been relied
upon by me have been duly acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or

diploma has been conferred on me before, either in this or in any other university.

Date: (Arnav Lekhara)

Roll No.15
Semester 1A

 Certificate

Ms. Tanya Agarwal Date:

Faculty - Legal and Constitutional History
University Five Year Law College
University of Rajasthan, Jaipur

This is to certify that Arnav Lekhara student of semester 1.Section A of

University Five Year Law College, University of Rajasthan has carried out project
tittle "Establishment of Supreme Court Calcutta” under my supervision. It is an
investigation of a minor research project. The student has completed research work
in stipulated time and according to norms prescribed for the purpose.

Supervisor

 Acknowledgment

I have written this project titled, "Establishment of Supreme Court

Calcutta” under the supervision of, Ms. Tanya Agarwal Faculty, University Five
Year Law College, University of Rajasthan, Jaipur. Her valuable suggestions herein
have not only helped me immensely in making this work but also in developing an
analytical approach this work.

I found no words to express my sense of gratitude for Director Dr. Aruna

Chaudhary, constant encouragement at every step.

I am extremely grateful to librarian and library staff of the college for the
support and cooperation extended by them from time to time.

Arnav Lekhara

 Table of Contents

Contents Page
No.

Declaration of originality 2

Certificate 3

Acknowledgment 4

Abstract 6

Objectives 7

Hypothesis 7

Research Question 7

Research Methodology 7

Chapter -1 - The Regulating Act of 1773 8

Chapter- 2 - Establishment of Supreme Court Calcutta 12

Conclusion 17

Bibliography 18

 Abstract

The Regulating Act of 1773 was the first attempt at creating a separate and somewhat independent
judicial organ in India, under the direct control of the King. The Chief Justice and other puisne
(junior) judges were appointed by the King. Section 13 of the Regulating Act empowered the Crown
to establish by Charter, a Supreme Court of Judicature at fort William 2. Regulating Act of 1773 142
in Calcutta. On 26 March 1774, Letters Patent was issued to establish the Supreme Court of
Judicature. The Supreme Court was to consist of a Chief Justice and three puisne judges being
barristers of not less than five (5) years of standing to be appointed by His Majesty. Sir Elijah
Impey, a distinguished English Barrister, was appointed as the first Chief Justice of the Supreme
Court of Calcutta, a post he held until 1787. The Supreme Court was set by 'Letters Patent'. Clause
XVIII of the first Charter ordained that 'the Supreme Court should be a court of equity, and shall and
may have the full power and authority to administer justice, in a summary manner, as nearly as may
be, according to the rules and proceedings of our High Court of Chancery in Great Britain'. In other
words, the power to administer justice and equity, (which was an important feature of the Crown
Courts in Britain) was also passed onto the Supreme Court and to subsequent Charter High Courts.
The Supreme Court, under the Regulating Act of 1773, was a court of record and had the power and
authority similar to that of the King's Bench in England. The Supreme Court of Calcutta had
jurisdiction over civil, criminal, admiralty and ecclesiastical (laws governing the affairs of the
Christian Church) matters. It had the power to issue writs such as mandamus and certiorari, similar
to the jurisdiction of the present day High Courts and Supreme Court. It also had the power of 'Oyer
and Terminer' i.e. the power to try offences and imprisonment. The Court also had to frame separate
rules of practice and procedure for governing its functioning. The Supreme Court had jurisdiction
over all British subjects and those residing in Bengal, Bihar and Orissa and had the power to decide
all complaints regarding crime, misdemeanours or oppressions. Appeals from this court were made
to the King-in-Council in England. The Charter of 1774, in pursuance of the Regulating Act,
establishing the Supreme Court in Bengal, did not delineate the bounds of its jurisdiction. This
omission led to a-sharp conflict of opinion about the jurisdiction of the Supreme Court. Not
infrequently, the Supreme Court, without drawing any light from the Regulating Act, overstepped

 the limits of its jurisdiction, and thus commenced in Bengal, an era of confusion, described by
Macaulay in his essay as a 'reign of terror'. Edmund Burke notes, “… [no] rule was laid down either
in the Act or the Charter by which the Court was to judge. No description of offenders or species of
delinquency was properly ascertained according to the nature of the place or the prevalent mode of
abuse.” The power and jurisdiction of the Supreme Court in matters relating to natives was
particularly controversial.

Objectives

Through this project work, the researcher aims to study about the composition,
jurisdiction and working of the Supreme Court established in 1774 under the Regulating Act,
1773.

Hypothesis

The Supreme Court established in 1774 under the Regulating Act, 1773 is failed to
achieve its objectives.

Research Question

How far the objectives behind establishment of the Supreme Court established in 1774
under the Regulating Act were achieved?

Research Methodology

The researcher has adopted doctrinal method research. The researcher has made extensive
use of the available resources at the library of University Five Year Law College, University of
Rajasthan and also internet resources.

 Chapter 1 - The Regulating Act of 1773

Introduction

The Regulating Act of 1773 was an Act of the Parliament of Great Britain intended to overhaul the
management of the East India Company's rule in India. 1It was passed by the British Parliament for
the regulation of the British East India Company's Indian territories, mainly in Bengal. It was the
first intervention by the British government in the company's territorial affairs and marked the
beginning of a takeover process that was completed in 1858.it 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. Lord North 'emphasised the
need of placing the Company's affairs on a solid, clear and decisive establishment.' However, the
Bill received strong opposition from different quarters, but eventually it got passed and was called
The Regulating Act of 1773. It remodelled the Company's constitution as it existed in working in
London and also introduced important changes in the government of its Indian possession. The
occasion for the Regulating Act was the company's misgovernment of its Bengal lands, brought to a
crisis by the threat of bankruptcy and a demand for a government loan.
The main provisions of the act were the appointment of a governor-general of Fort William in
Bengal with supervisory powers over the presidencies of Madras (now Chennai) and Bombay (now
Mumbai). Then the term of the directors of east India Company was increased from one year to 4
year and provision was made that every year one-fourth directors were elected in rotation. They got
all the powers, civil and military regarding all the company acquisitions as well as revenue in the
kingdoms of Bihar, Bengal and Orissa. All were to hold office for 5 years but king can remove them
if Court of directors recommends the removal.
The following conditions invited the Parliamentary intervention in the Company's affairs. The
English East India Company became a territorial power when it acquired a wide dominion in India
and also the Diwani rights. When the Company was in financial trouble, its servants were affluent.
In short, the Company was on the brink of bankruptcy. In 1773, the Company approached the

1 http://www.britannica.com/EBchecked/topic/496238/Regulating-Act
8



 British government for an immediate loan. It was under these circumstances that the Parliament of
England resolved to regulate the affairs of the Company. Lord North, the Prime Minister of England,
appointed a select committee to inquire into the affairs of the Company.The report submitted by the
Committee paved the way for the enactment of the Regulating Act

The main objectives of this Act were:-

1. Reform the constitution of the company.

2. To reform the company's government in India.

3. To provide remedies against illegalities of company's servants.

Reasons behind 1773 Act

By 1773, the East India Company was in dire financial straits.2The Company was important to
Britain because it was a monopoly trading company in India and in the east and many influential
people were shareholders. The Company paid GB£400,000 (present-day (2014) equivalent is
£43.3 million) annually to the government to maintain the monopoly but had been unable to meet
its commitments since 1768 because of the loss of tea sales to America. About 85% of all the tea
in America was smuggled Dutch tea. The East India Company owed money to both the Bank of
England and the government: it had 15 million lbs. (6.8 million kg) of tea rotting in British
warehouses and more enroute from India. Lord North decided to overhaul the management of the
East India Company with the Regulating Act. This was the first step to the eventual government
control of India. The Act set up a system whereby it supervised (regulated) the work of the East
India Company. The provisions of the Act clearly indicate that it was directed mainly to the
malpractice and corruption of the company officials. Regulating Act, of 1773 had some ultimate
causes before reformatting the policies of the company and regulating the authoritative power of
the Company over the territory of British Governmental Rule in India. The causes of regulating
act were:-
• Deteriorating financial condition of the company and its heavy debts.

2 http://www.indhistory.com/regulating-act.htm
9

 • Corruption amongst the servants of the company.

• Complicated Administrative problems of the dual Government.
• Public opinion against the Company.
• Gathered Momentum in India.
• Lack of proper Judicial Administration of central authority to control and guide the affairs of
the Company.
• Company's defeats in 1769 at the hands of Haider Ali of Mysore.
• Terrible famine in Bengal which took heavy toll of its population.
• The company applied for a loan of one Million Pounds in 1772.

Provisions of the Act

The Regulating Act reformed the Company's Government a Home and in India. The Act
set up a system whereby it supervised (regulated) the work of the East India Company but did
not take power for itself. 3The important provisions of the Act were:

(i) The term of office of the members of the Court of Directors was extended from one year to
four years. One-fourth of them were to retire every year and the retiring Directors were not
eligible for re-election.
(ii) The Governor of Bengal was styled the Governor-General of Fort William whose tenure of
office was for a period of five years.
(iii) A council of four members was appointed to assist the Governor-General. The government
was to be conducted in accordance with the decision of the majority. The Governor-General
had a casting vote in case of a tie.

(iv) The Governor-General in Council was made supreme over the other Presidencies in matters
of war and peace.
(v) Provision was made in the Act for the establishment of a Supreme Court at Calcutta
consisting of a Chief Justice and three junior judges. It was to be independent of the

3 Lucy S. Sutherland, “The East India Company in 18th Century Politics” Page No-147
10

 Governor-General in Council. In 1774, the Supreme Court was established by a Royal

Charter. Section 13 of this Act empowered the crown to establish the Supreme Court of
Judicature.
(vi) This Act prevented the servants of the Company including the Governor General, members
of his council and the judges of the Supreme Court from receiving directly or indirectly any
gifts in kind or cash.
(vii) In order to assert Parliament's control over the company, directors were required to place
regularly all corresponding to the concerned authorities of Secretary and Treasury.4
(viii)The subordinate presidencies were required to send regularly all detail of revenue and other
important matters to the Governor General.
(ix) 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 can remove them if Court of Directors
recommends the removal.

The provisions of the Act clearly indicate that it was directed mainly to the malpractice
and corruption of the company officials.

4 Penderel Moon, “Warren Hastings and British India” Page No-92

11

 Chapter 2 - Establishment of Supreme Court Calcutta

Introduction

In pursuance of the power given by the Regulating Act, 1773, the Crown issued a Charter
on March 26, 1774, 5establishing the Supreme Court of Judicature at Calcutta. The Charter settled
the various details relating to the Court, and abolished the legal provisions of the Charter of 1753,
which meant the supersession of the Mayor's Court and the Court of Oyer and Terminer and
Gaol Delivery Composition of Supreme Court—According to S. 13 of the Regulating Act, 1773,
the Supreme Conn was constituted to be a Court of Record. It consisted of a Chief Justice and
three Puisne Judges to be appointed by the Crown lo act during the pleasure of the Crown The
Charter appointed Sir Elijah Imply as the Chief Justice, and Robert Clambers, S.C. Le Maistre
and John Hyde as the three Puisne Judges They were Barristers of not less than five years
standing, All the Judges were declared to be Justices of the Peace and Coroners within Bengal,
Bihar and Orissa. In authority and jurisdiction, they were to be in the position of Judges of the
King's Bench in England. The Chief Justice was given a casting .vote. Writs, summons, rules,
orders and other mandatory, process issued by the Court were to run in the Crown's name.

Jurisdiction of Supreme Court

The various jurisdictions of the Supreme Court were as under-

1. Original Jurisdiction in Civil Cases—The Court was authorised to hear, examine, try
and determine all civil causes, suits and actions against (i) The Company, (ii) The Mayor
and Aldermen of Calcutta, (iii) The Crown's subjects who were residents within Bengal,
Bihar and Orissa or who should have resided there or who should have any debts, effects or
estate, real or personal, within the same, (iv) Any person who was employed by, or was
directly or indirectly in the service of the Company, or the Mayor and Alderman or any of
the Crown's subjects, and (v) Any inhabitant of India residing in the said Provinces if he

5 Curley, Thomas M. (1998). Sir Robert Chambers: Law, Literature, and Empire in the Age of Johnson
12

 entered into an agreement in writing with any of the Crown's subjects that in case of dispute
between them, the matter should be determined in the Supreme Court, provided the cause of
action exceeded the sum of Rs. 500.
2. Jurisdiction as a Court of Equity—The Supreme Court was to be a Court of Equity in
the English legal sense of the word, [t was given full power 10 administer justice in a
summary manner as nearly as might be according, to the rules and proceedings of the High
Court of Chancery in Great Britain. It could issue Subpoena and other process to compel the
appearance and answer upon oath of the opposite party, as well as to compel obedience to
the decree and order of the Court in such manner and form and lo such effect as the High
Chancellor of Great Britain did.
3. Jurisdiction as a Criminal Court—The Supreme Court was to be a Court of Oyer and
Terminer and Gaol Delivery in and for the town of Calcutta, the of l-'ort William and
Subordinate factories. In this capacity its authority was like that of the Justices of Oyer and
Terminer and Gaol Delivery in England. It has to administer criminal justice in all cases of
grave offences and misdemeanours in such manner and form or as nearly as the conditions
and circumstances of the place and persons admitted of, as the Court of Dyer and Terminer
and Gaol Delivery did in England. The Charter provided for the employment of Grand Jury

and Petty Jury, summoned by tine Sheriff, composed of the subjects of Great Britain
residing in Calcutta.
4. Jurisdiction as an Ecclesiastical Court—The Supreme Court was given ecclesiastical
jurisdiction over British subjects residing in Bengal, Bihar and Orissa, It was to administer
and execute ecclesiastical law as used and exercised in the diocese of London so far as the
local circumstances required. The Court might grant probates of wills and testaments of the
deceased British subjects and letters of administration in regard to their effects if they died
intestate or without appointing executors of their wills.
5. Jurisdiction as an Admiralty Court—The Supreme Court was declared to be a Court
of Admiralty for Bengal, Bihar and Orissa to hear and try all cases, civil and maritime, in
the same manner as the High Court of Admiralty did in England. It was given power to try,
with the help of Petty Jury of British subject’s residents in the town of Calcutta, and punish
13

 all treasons, murders, piracies and other crimes maritime, committed on the high-seas, in
accordance with the laws and customs of the High Court of Admiralty in England.
6. Jurisdiction as to Supervision Over Inferior Courts—The Court of Requests, as
established in 1753, the Courts of the Quarter Sessions to be held by the Justices of the
Peace, Sheriffs, and other Magistrates were put under the control and supervision of the
Supreme Court in the same manner and form as the inferior courts and Magistrates in
England were under the order and control of the Court of King's Bench.
7. Jurisdiction as to Appeals—A civil appeal might be taken to the King-in-Council. Ft
was to be filed within a period of six months of the delivery of judgment and the matter in
dispute was to be over 1,000 Pagodas in value. Criminal appeals might also be preferred to
the King-in-Council, but in respect of them the Supreme Court was given full power and
absolute discretion to allow or deny such appeals.
8. Power to Suspend Execution of Sentence—The Supreme Court was empowered to
reprieve and suspend the execution of any capital sentences in hard cases which presented a
proper occasion for mercy and wherein it might be proper to remit the general severity of
the law. The records of the cases with the reasons for recommending the criminals to mercy
were to be transmitted to the King-in-Council for consideration.

Immunity Available to Councillors and Judges—The Governor General, the Councillors,

the Chief Justice and its Judges of the Supreme Court were not liable to be arrested or
imprisoned in any action, suit or proceeding except in cases of treason or felony.

Merits of the Supreme Court

(How Far the Objectives behind Its Establishment were achieved?)

1. The Supreme Court judges were professional lawyers, sent from England appointed by
crown and holding their post during its pleasure. Thus, judges had knowledge of English
law and could deal with the cases effecting life and property of the people.
2. The tenure of the judges was independent from the wishes of company of Calcutta Govt.
14

 This-gave independence to judiciary.

3. For the first time judiciary was divorced from the executive. Thus, legality of administrative
action of the company's servants could be judged by the legal norms.
4. Jurisdiction of civil and criminal courts of 1753 was confined to the limits of Calcutta and
could not thus lake of cognisance of cases arising in Bengal, Bihar and Orissa. The
Englishman residing in these territories being beyond their jurisdiction could commit crime
with impunity. This major defect was removed by the formation of this court.
5. The Supreme Court was simultaneously a Court of Law as well as a Court of Equity and
having different kinds of jurisdiction as admiralty and ecclesiastical. In this way it was a
great improvement of judicial system prevailing even in England at that time.

Defects of the Supreme Court

(How Supreme Court Prove to be a Reign of Terror in Practice?)

1. Vague Jurisdiction of Supreme Court—Provisions of Regulating Act in relation to

Calcutta were specific, whereas relating to Bengal, Bihar and Orissa, they were quite vague
and uncertain. The Act distinguished between Calcutta on the one hand and Bengal, Bihar
and Orissa on the other hand. Similarly, specific powers for administration and legislation
regarding Calcutta were vested in Governor-General-in- Council but no such specific
powers were vested in relation to Diwani territory. Therefore, it was very doubtful as to
whether the powers of Supreme Court extended to Diwani territory or not.
2. Vague Provisions of Law to be Applied by Supreme Court— Certain terms like
‘British Subjects', 'Subjects of His Majesty', 'Subject of Great Britain, of us and our heirs',
which were used to define jurisdiction of Supreme Court were not defined clearly.
3. Conflict Between the Executive and Judiciary—Supreme Court was given power to
examine the legality of the Diwani Acts of the 'company's servants' or 'His Majesty's
subjects' or persons 'directly or indirectly in the service of the company' whereas council
was of the view that activities relating to revenue collection do not come under court’s

15

 jurisdiction. Unfortunately provisions of the Act did not make clear as to whether
'Management etc. 'of revenue vested in council or not. Provisions relating to relations
between Supreme Court and Governor-General and Council were uncertain. The Governor-
General and Council were of the opinion that they were beyond the jurisdiction of the court,
their act whether official or individual cannot be questioned in the court. On the other hand,
court took cognisance to their official and individual acts. This anomaly made relations of
both of these two distasteful.
4. Conflict Between the Supreme Court and Company's Court— Because of
establishment of Supreme Court two independent and parallel judicial systems came into
existence, Adalats in Diwani territory and Supreme Court at Calcutta. There was no mutual
relationship between the two; therefore, conflict between the two systems became
inevitable. Patna and Kamaluddin Cases are the examples of this conflict.
5. Harshness of the Procedure—Creation of Supreme Court gave rise to the difficulties for
Indians residing in Bengal, Bihar and Orissa, the court was out of harmony with the mode
of life, traditions and manners of Indians. This created dissatisfaction among these people.
Supreme Court followed the technical English common civil procedure. A very
objectionable feature of this procedure was arrest on 'manse process'. This again gave rise to
host of difficulties for Indians residing in Bengal, Bihar and Orissa.

16

 Conclusion

On account of the above mentioned difficulties and deficiencies of the

Regulating Act the Supreme Court failed to fulfil the hopes of their framers,
therefore, it is remarked that instead of organising Government the Regulation Act
of 1773 organised the centres of conflict and the Supreme Court proved to be reign
of terror.

17

 Bibliography

1. http://www.indhistory.com/regulating-act.html

2. http://www.indianetzone.com/14/regulating act1773.htm

3. http://realityviews.blogspot.in/2010/04/part-10-indian-legal-history-
regulating.html

4. http://www. Britannica.com/EBchecked/topic/496238/Regulating-Act

5. V.D. Kulshrestha, "Landmarks in Indian Legal and Constitutional History"

8th edition in 2005

6. Wolpert, Stanley (2009). A New History of India (8th Ed.)

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