SUPREME COURT AT CALCUTTA- ITS

COMPOSITIONS, POWERS AND

FUNCTIONS
INTRODUCTION:
The Regulating act empowered the British Crown to establish a Supreme
Court at Fort William (Calcutta) by issuing a charter. So British Crown issued
a charter in 1774 establishing the Supreme Court of judicature which
superseded the provisions the charter of 1753 and resulted in abolition of
mayor court of Calcutta.
1) Composition: The Supreme Court was to consist of a Chief Justice and 3
puisne judges to be appointed by the Crown. Only those persons who were
barristers of not less than 5 years standing could be appointed as judges.
They were to hold office during the pleasure of the Crown.
2) Function:
l. The Supreme Court was a Court of Record. It was conferred extensive
jurisdiction over civil, criminal, admiralty, and ecclesiastical cases. It was also
a court of equity and therefore, it was given the power to administer justice
according to the principles of equity and good conscience.

2. It could regulate its own procedure and make rules for this purpose. These
rules could be approved, modified or rejected by the King in Council.
3. The Supreme Court was to nominate three persons annually to the Governor
General and Council who would select one of them as Sheriff.

4. The primary duty of the Sheriff was to execute the orders of the Supreme
Court and detain in prison the persons committed by the Court. The Supreme
Court was authorized to enroll attorneys and advocates.

5. It could appoint sub-ordinate officers but their salaries required approval of

the Governor General and Council. The Supreme Court was also authorized to
regulate the court fee with the approval of the Supreme Council.

6. It was to exercise, supervision and control on sub-ordinate courts (Court of

collector, quarter sessions, court of requests, sheriffs.) It was authorized to issue
writs of certiorari, mandamus, Quo-warranto to these courts.
 3) JURISDICATION: It can be explained under the following heads:
1) CIVIL JURISDICTION: The Supreme Court was conferred with wide
jurisdiction in civil matters. It was conferred original jurisdiction in civil matters.
a) This jurisdiction extended to the East India Company, mayor and Alderman of
Calcutta.
b) His Majesty's subjects and british subjects residing in Bengal, Bihar and
Orissa.
c) Any other person directly or indirectly under the employment or service of the
company. d) the inhabitants of Bengal, Bihar and Orissa if they consented in
writing to refer their disputes to the Supreme Court provided the subject matter
of the suit exceeded rupees 500.
2) CRIMINAL JURISDICTION:
1. The Supreme Court was made a Court of Oyer, Terminer and Gaol delivery
in and for the town of Calcutta. The factory of Fort William and factories sub-
ordinate thereto.

2. It employed the services of Grand jury and petty jury for trial of criminal
cases of British subjects. The Supreme Court did not have jurisdiction over the
native inhabitants of Calcutta and territory of Bengal, Bihar and Orissa.

3. Its jurisdiction extended to His Majesty's subjects and persons in the service
of the company.

4. Significantly, the Supreme Court did not have jurisdiction over Governor
General and members of the council for any offence excepting treason or felony.

5. The Governor General, the councillors and the judges of the Supreme Court
acted as justices of Peace and held quarter sessions.

6. Besides, the Supreme Court was also empowered to reprieve or suspend the
execution of any capital sentence if in its opinion it was a fit case for mercy. In
that case, it could refer the case to the British Crown with reasons for
recommending mercy. The final decision in this regard was however left to the
pleasure of the crown.
3) ADMIRALTY JURISDICTION;
l. The Supreme Court was to be the Court of Admiralty for the territories of
Bengal, Bihar and Orissa. In this capacity, it could try all cases — civil and
maritime and all crimes committed upon vessels, ships, ferries and high seas
and off-shores of Bengal, Bihar and Orissa with the help of petty jury
consisting of British subjects residing in Calcutta. This jurisdiction extended to
all his majesty's subjects and persons who were directly or indirectly in the
service of the company, residing in Calcutta and territories of Bengal, Bihar
and Orissa,
ECCLESIASTICAL JURISDICTIONL:
This jurisdiction extended to all British subjects living in Bengal, Bihar and
Orissa according to the Ecclesiastical law prevailing in the Diocese of London.
Thus it could grant probates of wills to the British subjects within the territories
of Bengal, Bihar and Orissa and also letter of administration of the British
subjects dying inter-state. It could also appoint guardians and keepers for infants
and insane persons and their estates in accordance with the rules prevalent in
England.
EQUITY JURISDICTION: In this capacity, Supreme Court was to administer
justice in a summary manner according to the rules and proceedings of the
Chancery court of England. B) The court of Chancery of England was not
bound by technicalities of law and could administer justice according to the
principles of equality and good conscience.
WRIT JURISDICTION: Being a Supreme Court, it could issue writs to court
and officers sub-ordinate to it - Court of Collector, Court of requests, Quarter
sessions, Sheriff, etc. It could issue writs of certiorari, mandamus, error or
procedendo.
PROVISION FOR APPEALS:
In Civil cases, appeals from the decision of Supreme Court could be taken to
the King in Council. Its decisions were final in England provided the subject
matter in dispute exceeded 1000 pagodas. Such an appeal could be filed
within 6 months of the date ofjudgment.
The Cossijurah Case (1779-80)
There was a clash between Supreme Court and Supreme Council over the
issue of supreme court's jurisdiction over zamindars. Raja Sundaranarayan
was zamindar of Cossijurah in the district of Midnapore in Orissa. He was to
pay to the company a fixed sum of money as the land revenue annually. He
was under a heavy debt to kasinathBabu. Having failed to recover the money
from the raja through Board of Revenue at Calcutta, Kasinath filed a debt suit
against the Raja in the supreme court at Calcutta. His contention was that Raja
being revenue collector was in the service of the company and so came under
the jurisdiction of Supreme Court. Supreme court issued a writ of Habeas for
the arrest of the Raja but he absconded
In the meantime the collector of Midnapure reported the matter to the
Governor General and council complaining that the revenue collection in the
district is adversely affected because of the absence of Raja. So Supreme
Council instructed the Zamindar not to obey the supreme court
Supreme Court sent sheriff along with 60 men to execute the writ.
Zamindar used force and drove away these officers. He even alleged that
sheriffs men entered his house, injured his servants, forcibly broke open the
doors and committed outrages upon the place of religious worship. So sheriff
and his fellows were arrested and kept in confinement for 3 days
So the Supreme Court ordered the councillors to appear before
them for charges levelled against them for arrest of sheriff and the motive to
deprive kasinath of the recovery of his debts from Raja. But Attorney- general
advised councillor not to appear before Supreme Court. The Supreme Court
felt offended and put the Attorney General of the company north Naylor in
prison where he died. It was at this stage that Kasinath Babu withdrew his suit
against Raja of Cossijurah and Governor General and council in view of the
serious consequences arising out of the case.
CASE OF KAMALUDDIN(1775):
Kammaluddin was an ostensible holder of a salt farm at Hijili on behalf of
Kant Babu, who was the real farmer. In 1775, he was arrested by the order of
the Revenue Council of Calcutta on the ground that he defaulted payment of
arrears or revenue. He was committed to prison without bail. Kamaluddin
approached the Supreme Court and obtained the writ of Habeas Corpus. The
Supreme Court directed to set him free on bail and it even granted him the
bail.
The judges further directed that he should not be imprisoned again until the
real farmer Kant Babu had been called upon to pay the arrears. The members
of The Supreme Council expressed their resentment against this. According to
them, the Company was confirmed as Diwan of Bengal by the Regulating Act,
so the council had exclusive jurisdiction. The Supreme Council ordered for
the imprisonment of Kamaluddin (without paying attention to the order of the
Supreme Court). But Governor General Warren Hastings refused to support
the proposed steps of the Supreme Council.
This case was an eye-opener disclosing defective provisions of the Regulating
Act due to which the Supreme Court and the Council came into conflict.
The cause for the conflict relating to jurisdiction and powers of the Supreme
Court are as follows:
1. The difficulty arose because the various terms like 'British Subjects',
'His Majesty's Subjects', ' persons employed by or directly or indirectly,
in the service of the Company' or 'the persons employed by, or directly
or indirectly in the service of any
of his Majesty's subjects' etc. were not defined. So the whole jurisdiction
became vague.
2. It was not clearly stated whether Hindu, Muslim, Christian or the
English law was to be followed. But the Judges knew only English law.
The Supreme Court replaced the Mayor's Court which administered
English Law and therefore it appears that the Supreme Court was to
administer the English law.
3. The Supreme Court also claimed to have jurisdiction over the revenue
collectors of the Company for the wrongs done by them. E.g.:
Kamaluddin case.
4. The proceeding of the Supreme Court proved to be very expensive.
Even the preliminary proceedings in a case caused heavy expenses,
because litigants were required to engage an English Barrister and had
to cover long distances to attend to their cases.
5. In Criminal matters, the Supreme Court invariably followed the
provisions of the British Criminal Law which were quite foreign to the
Indians. The substantive provisions of the criminal law were also
punitive and harsh. For minor offences, a person could be hanged which
was an added cause of resentment against the Supreme Court by the
Indians. E.g.: Rajan Nandhakumar Case.
6. Even in civil cases, their technical procedures had undesirable features.
In a case being filed by a plaintiff after swearing an affidavit to the
effect that the defendant fall within the jurisdiction of the court, the
court would issue 'writ of habeas' ordering the arrest of the defendant
with provision to release him on bail. But the amount of bail had been
very high which the defendant failed to pay, he had to remain in prison
till the initial plea regarding the Court's jurisdiction was disposed of.
This rule of procedure appeared very much oppressing to the Indians.
7. There was much uncertainty and confusion as to the relation and
jurisdiction of the Supreme Court and the Company's Adalats.
8. There was uncertainty and confusion as to the writ jurisdiction of the
Supreme Court. The Act of settlement was passed in 1781 to remove
the defects of the Regulations Act, 1774.
Merits of the Supreme Court:
1. While the judges of the Mayor's Court were mostly the English servants of
the Company and quite ignorant of the legal system, the judges of the
Supreme Court were professional lawyers appointed by His Majesty.

2. The Supreme Court exercised Common law, Equity, Admiralty,

Ecclesiastical jurisdictions and an improvement even on the judicial system
of England.
3. The Charter of 1774 made praise-worthy attempt to make the Supreme
Court independent of the Executive council.
4. This court was empowered to superintend the Court of Collector, Quarters
sessions, Court of Request, Sheriffs. For this purpose, it could issue writs in
the nature of certiorari, Mandamus, quo warranto. This shows the Court
was conferred on with wider jurisdiction.
 5. The judiciary was made independent and got divorced from the executive.

CHAPTER-II
REGULATING
ACT,1773
he Regulating Act was passed in 1773.
OBJECTS:
l. To bring the management of East India Company under the control of British
Parliament or British Crown.
2. To introduce reforms in the constitution of the company at England
3. To introduce reforms in the company's government at India
4. To prove remedies against illegalities and oppressions committee by the
company's servants in India.
THE PROVISIONS OF REGULATING ACT:
1. CONSTITUTION OF THE COMPANY:

i. The term of Directors was increased from one year to four years and of the
Directors were to retire every year and in their place other persons were
elected.
ii. The voting rights of the proprietors were also changed. Only those
proprietors who held shares of 1000pounds were given right to vote and who
held shares less than 1000 were denied vote.

ili. The proprietors who held stock for 1000 pounds were given one vote and who
held 3000 pounds were given 2 votes and who held 6000 pounds were given
3 votes and those who held 10000 pounds or more were given 4 votes.
iv. Besides to bring the complete control of the company the revenue affairs must
be placed by the Directors of the company before the Treasury in England
and affairs with regard to civil and military with the Indian authorities
before the Secretary of State in England.
2. THE COMPANY'S GOVERNMENT IN INDIA:
a. EXECUTIVE GOVERNMENT:

i. At Calcutta presidency the status of Governor-in-council was raised to

Governor-General-in-council and also council of four members was
established.

ii. They were appointed for five years, but could be removed even before
their term on the recommendation of court of directors.
iii. A casual vacancy in the office of Governor-General was to be filled by
the senior most member of the council and vacancy in the council is to be
filled by the company with the consent of the British crown and their
salary was fixed.
iv. The names of the first Governor-General and four councilors were
specifically stated in the Regulating Act.

v. Warren Hastings was to be the Governor-General and Richard Barwell,

General Clavering, Phillip Francis and Colonel Monson were to be the
Councilors.
vi. The decisions of the council were to be made by majority of votes and in
case of equal, the Governor-General had a casting vote and thus the
Governor General could not override the majority of the council.

vii. The presidencies of Bombay and Madras were brought under the control
and supervision of Governor-General and council of Calcutta in matters
of war and peace.
viii. The presidencies of Madras and Bombay could not make any treaties of
war and peace with Indian Princes without getting approval of
GovernorGeneral and council, but however there were two exceptions for
it.

ix. If there is any imminent necessity as would render it dangerous to

postpone war or treaty until the orders from the Governor-General may
arrive and in case if any special orders were received from the court of
Directors to commence war or to make treaty of peace or other treaty.
 b. LEGISLATIVE AUTHORITY:
i. The Governor-General and council were empowered to make rules and
regulations and issue ordinance for the good governance of Fort William
and factories subordinate to it.
ii. These rules must not be against the rules or laws of England.

iii. Any person could file an appeal against such rules and regulations in the
King-in-council within 60days of their registration in the Supreme court.

iv. Any person in England could also file an appeal against them in King_-
incouncil within 60 days of publication.
The King-in-council could disapprove or disallow them at any time within 2
years from the date of this passage.
It was necessary to send copies of such rules and regulations to the Secretary
of State in England.
c. JUDICIAL AUTHORITY:

i. This Act empowered the British crown to establish a Supreme court at

Calcutta by issuing a Charter.
The Act made specific provisions for the appointment for the judges of the court
and also for the jurisdiction of the court.

CHARTER OF 1833
INTRODUCTION:

The 20 years renewal of the charter in 1813 ran out in 1833. This was the
time for the government to do a careful assessment of the functioning of the
company in India. The charter was renewed for another 20 years, but the company
was asked to close its commercial business. Thus, this time the charter was
renewed on the condition that Company should abandon its trade entirely, alike
with India and China, and permit Europeans to settle freely in India. The company
 lost its monopoly in China and also the trade of tea which it enjoyed with Charter
Act of 1813.
INDIA AS A BRITISH COLONY:
The charter act of 1813 legalized the British colonization of India and the
territorial possessions of the company were allowed to remain under its
government, but were held "in trust for his majesty, his heirs and successors" for
the service of Government of India. This act made the Governor General of Bengal
the Governor General of British India and all financial and administrative powers
were centralized in the hands of Governor General-in-Council. Thus with Charter
Act of 1833, Lord William Bentinck became the "First Governor General of
British India". The number of the members of the Governor General's council was
again fixed to 4, which had been reduced by the Pitt's India act. However, certain
limits were imposed on the functioning of the 4th member. The 4th member was
NOT entitled to act as a member of the council except for legislative purposes.
First fourth person to be appointed as the member of the Council was Lord
Macaulay.

SPLIT IN BENGAL PRESIDENCY: The Charter Act of 1833 provided for

splitting the Presidency of Bengal, into two presidencies which were to be known
as Presidency of Fort William Presidency of Agra. But this provision never came
into effect, and was suspended later. Enhanced Power of Governor General of India
Charter act of 1833 distinctly spelt out the powers of the Governor-General-in-
Council. He could repeal, amend or alter any laws or regulations including all
persons (whether British or native or foreigners), all places and things in every part
of British territory in India, for all servants of the company, and articles of war.
However, the Court of Directors acting under the Board of control could veto any
laws made by the Governor-General-in-Council.
CODIFYING THE LAWS:

The charter act of 1833 is considered to be an attempt to codify all the

Indian Laws. The British parliament as a supreme body, retained the right to
legislate for the British territories in India and repeal the acts. The act of 1833
provided that all laws made in India were to be laid before the parliament and were
to be known as Acts. In a step towards codifying the laws, the Governor-General-
in-Council was directed under the Charter act of 1833, to set up an Indian law
Commission. First Indian Law Commission So the first law commission was set
up by the Charter act of 1833 and Lord Macaulay was its most important member
and Chairman. The other members of this commission were English barrister
Cameron, Macleod of Madras service, William Anderson of Bombay Service and
Sir William McNaughton of the Calcutta Service. Sir William McNaughton did
not accept the appointment. The objectives of the law commission was to inquire
into the Jurisdiction, powers and rules of the courts of justice police
establishments, existing forms of judicial procedure, nature and operation of all
kinds of laws. It was directed that the law Commission shall submit its report to
the Governor General-in-council and this report was to be placed in the British
parliament.

INDIANSIN THE GOVERNMENT SERVICE:

The section 87 of the Charter Act of 1833, declared that "Normative of the
British Territories in India, NOR any natural Boon subject of "His majesty"
therein, shall by any reason only by his religion, place of birth, descent, color or
any of them be disabled from holding any place, office or employment under the
company" This policy was not seen in any other previous acts. So the Charter act
of 1833 was the first act which provisioned to freely admit the natives of India to
share an administration in the country.
MITIGATION OF SLAVERY: This act also directed the Governor General-in-
Council to adopt measures to mitigate the state of slavery, persisting in India since
sultanate Era. The Governor General-in-Council was also directed to pay attention
to laws of marriage, rights and authorities of the heads of the families, while
drafting any laws.
MORE BISHOPS: The number of British residents was increasing in India.
The charter act of 1833 laid down regulation of establishment of Christian
establishments in India and the number of Bishops was made3.