Indian-Legal-History-A-Critical-appreciation-of-raja-Nand-Kumar-and-Cossijurah-cases.pdf

Introduction: A great step was taken in the Indian legal history when the supreme court of judicature was created at Calcutta under the regulating act of 1773. Bengal, Bihar and Orissa were in the grip of confusion, chaos and anarchy after the battle of plassey. The company’s servants exploited the people, amassed the wealth and returned to England. All servants high or low suffered from one obsession only how to achieve easy fortune in India and return to England as soon as possible. These people led a life completely out of tune with the prevailing social moves1.The newly enriched ex-servants of the company dabbled in British politics by purchasing with their ill gotten money seats in the House of Commons and thus offended the landed aristocracy. They purchased stock of the company and sought to influence its policies. In the meanwhile, the news of the famine led the British public suspect that something was palpably wrong with the company’s affairs in Bengal. A realization was dawning on the British politicians that the company was no longer a mere commercial body, but it had assumed the character of a political and territorial power in India. As was commented by Edmund Burke:.. “The east India Company did not seem to be merely a company for the extension of British commerce, but in reality a delegation of the whole power and sovereignty of this kingdom sent into the east”. Therefore it was being realized that the company should not be left alone outside the sphere of the parliamentary control. Public opinion was thus slowly crystallizing in favour of the parliamentary interventions of the company’s affairs. The climax of the whole affair was reached when due to its financial embarrassment the company had to approach the British government for a 1

They were nicknamed as nabobs in England for their vulgar display of wealth and overhearing behavior.

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big loan. The paradox of the whole situation was that while its servants were getting richer, the company itself was fast getting into financial difficulties. Its shareholders voted increased dividends for themselves from 1767; it was required to pay a tribute of four lakh pounds every year to the British exchequer in consideration retaining its territorial acquisitions and revenues. According to Ilbert, this was the state’s share of the “Indian spoil” 2 . In the prevailing atmosphere, the British government could not possibly give a loan to the company without probing into its affairs. Therefore, a select committee and a secret committee were appointed by the House of Commons for this purpose. In a number of condemnatory reports, these committees exposed the defects and the deficiencies prevailing in the existing structure. These reports “drove home the conviction that the independence of the company must yield to the supremacy of the parliament”3and thereby parliament consequently enacted the regulating Act, 1773, to remove the evils of the prevailing system. The Act modified the constitution of the company and subjected it, to some extent, to the control of British government and parliament, reorganized the Calcutta government and established the Supreme Court at Calcutta. With the passage of this Act, era of royal charters gave place to the era of parliamentary enactments. Henceforth, parliament enacted a number of Acts, the era of royal charters gave place to the era of parliamentary enactments. Henceforth, parliament enacted a number of Acts, usually one Act at an interval of twenty years each, to renew the company’s charter. On each occasion the affairs of the company were subjected to close investigation and security and each time the authority of the crown and parliament was tightened over the company.

2

Ilbert “The government of India”, 39 (1915).

3

Roberts, “History of British India. 182(1958);Keith,A,B., “A Constitutional History Of India”

2

The Supreme Court At Fort William _ Calcutta: An important innovation made by the Regulating Act, 1773, was that on March 26, 1774, King George (III) issued a charter for the creation of the Supreme Court of Judicature at Calcutta superseding the judicial System prevalent there under the charter of 1753 which did not provided for the due administration of Justice in such a manner as the state and condition of the company’s presidency of Fort William in Bengal did and must require. Therefore, the Act sought to provide an improved and more effective Judicial Tribunal. Constitution Of The Supreme Court: The Supreme Court was to consist of a Chief Justice and Three Puisne Judges4.The Judges were appointed by the British King. A barrister of five years standing was qualified to be appointed as Judges. The judges were to hold office during the pleasure of the crown. Sir Elijah Impey was appointed as the first chief Justice of the Supreme Court5. The Judges of the Supreme Court were also required to be justice of peace6 and to have such jurisdiction and authority as the Judges of the Court of King’s Bench in England had under the common Law. As such, Judges of

4

Later on the number of Puisne Judges was reduced to two.

5

Robert Chambers, Stephen Caesar Le Maistre and John Hyde were the first Puisne Judges of the Supreme Court. 6

A judge who handles minor legal matters such as misdemeanors, small claims actions, and traffic matters in "justice courts." Dating back to early English Common Law,Justices of peace were very common up to the 1950s, but they now exist primarily in rural "justice districts" from which it is unreasonable for the public to travel to the county seat for trials of minor matters. A justice of the peace is usually an attorney, but some states still allow laypersons to qualify by taking a test.

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the Supreme Court were given the status of the Judges of the Kings bench in England. Jurisdiction Of the Supreme Court: The Supreme Court was empowered to hear civil cases against:1. The Company; the Corporation of Calcutta. 2. His majesty’s subjects residing or having any debt or property in Bengal, Bihar and Orissa; executors and Administrators of such subjects. 3. Any person employed by, or being directly or indirectly in the services of the company, the corporation, or 4. Any of His Majesty’s Subjects, any inhabitant of Bengal, Bihar and

Orissa, if he entered into a written agreement with any of His Majesty’s subjects agreeing that in case of dispute, the matter would be determined by the Supreme Court and the cause of action exceeds Five Hundred rupees7. The court was to be the court of Record8. The court was empowered to hear Civil, Criminal, Admiralty and Ecclesiastical jurisdiction as well as to establish rules of practice and process and to do all things necessary for the administration of Justice (section 13). 7

In the last situation, the court could hear the matter either in the first instance or by way of Appeal from company’s court. 8

In common law jurisdictions, a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Judgments of a trial court of record are normally subject to appellate review. In many jurisdictions, all courts are courts of record. In many jurisdictions, courts that have the power to fine or imprison must be courts of record. In almost all jurisdictions, a court of record will have a court clerk whose primary duty is to maintain the permanent records. Traditionally, a court of record was required to have its own unique seal, which was used to authenticate its judgments and copies of its records.

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As a criminal court, the Supreme Court was to Exercise the powers of and act in such manner and form or as nearly as the condition and circumstances of the place and person admitted of, as a court of Oyer and Terminer and Goal Delivery9 in and for the town of Calcutta, the factory of Fort William and the factories subordinate thereto. The court would summon Grand Jury consisting of His Majesty’s Subjects resident in Calcutta to present the court Crimes and Offences within their knowledge. For criminal cases a petty jury consisting of British Subjects and residents in Calcutta was to be used. In case where it might be proper to remit the general severity of law, the Supreme Court was given the power to reprieve or suspend the execution of any Capital sentence wherein the Judges thought that their was a proper occasion for mercy until the pleasure of the crown was known. In such cases, the court was to transmit to the crown the record of the case with the reason for recommending the criminal to mercy. As an ecclesiastical court, the Supreme Court was authorized to exercise an Ecclesiastical Jurisdiction on British Subjects residing in Bengal, Bihar and Orissa according to the Ecclesiastical law prevailing in diocese of London. The Supreme Court, therefore, could grant probate of Wills10 British Subjects dying within Bengal, Bihar and Orissa. The Supreme Court could also issue Letters of administration for the goods, chattels and other effects of the British Subjects dying intestate or without appointing an executor to persons and their estates, according to the rules prevalent in England. 9

A court of Oyer and Terminer in England had a wider jurisdiction than that of Goal Delivery. The former could try all the criminal cases, felonies and misdemeanors, while the latter could try only those persons who had been arrested and lodged in the prison. Both these combined meant plenary criminal Jurisdiction. 10

The proof before an officer appointed by law, that an instrument offered to be recorded is the act of the person whose last will and testament it purports to be. Upon proof being so made and security being given when the laws of the state require such security, the officer grants to the executors or administrators cum testamento annexo, when there been adopted, but provision is made for perare no executors, letters testamentary, or of administration.

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The Supreme Court was also to be the court of Admiralty for Bengal, Bihar and Orissa to hear and try in the same way as the Admiralty Court in England. It was to hear all “causes civil and maritime” and “all maritime crimes” committed upon the high with the help of a petty Jury consisting of British Subjects resident in Calcutta. The maritime Jurisdiction was to extend to His Majesty’s Subjects residing in Bengal, Bihar and Orissa and persons directly or indirectly in the service of the company or any of His Majesty’s subjects. Further to ensure the court of Request11, justices of the peace and court of quarter sessions12 held by the justice of peace at Calcutta might act conformably to law and justice, the supreme court was to Supervise and control these courts in the manner and form as inferior courts and magistrates of England were subjects to the control of the courts of King’s Bench, to do so, the Supreme Court could issue various prerogative writs of mandamus, certiorari, procedendo or error. Appeals: Provisions for appeals from the Supreme Court to the King-in-council were made in the Charter. In the civil cases any appeal lay with king- incouncil if the subject matter in dispute exceeds one thousand pagodas and the petition seeking the requisite permission was presented to the Supreme Court within six months from the day the judgement was pronounced. In criminal cases, the Supreme Court was to have full and absolute direction to allow or deny permission to make an appeal to king-in-council. Besides kingin-council reserved the right to refuse or admit an appeal, as a special case 11

This court was created under the charter of 1753 at each presidency town to decide cheaply, summararily and quickly cases upto five (5) pagodas or fifteen (15) rupees. The idea underlying it was to help the poor litigants who could not defray the expenses of litigations at Mayor’s Court. 12

The governor general, members of the council and Judges of the Supreme Court were appointed as the justices of peace with power to hold quarter sessions by the Regulating Act.

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from any judgement, decree or order of the Supreme Court upon such terms and conditions as it thought fit. The court was also empowered to admit such and so many advocates and attorneys as it thought proper only they were to be entitled to appear, plead and act on behalf of the suitors in the court. The Governor General and Members of his Council and the Judges of the Supreme Court were exempt from imprisonment except for treasons and felony. Law To Be Administered By The Supreme Court: The Regulating Act of 1773 was silent about the law which the Supreme Court was to administer and contain no effective provisions to restrict the Jurisdiction of the Supreme Court over Indians. The Judges appointed to the court were well versed with English Traditions and were also learned in English Laws but they were altogether unfamiliar with codes of Indian Laws, the customs and traditions of the Indian people. Nor did they care to acquaint themselves with them. Therefore, Justice was administered by applying the English Law and procedure. According to Cowell, “This

Tribunal,

vested

with

extraordinary

powers

and

so

ludicrously unsuited to the social and political conditions of Bengal, was not merely to exercise a civil and criminal jurisdiction, wholly strange and repugnant to the Indian people. It might sit one day on its common law side and give judgement to a suit and on the next day might sit on its equity side and restrain that suitor, from proceeding to execution”13. One of the first achievements of the court was the hanging of Raja Nandkumar for an Act committed many years before the court was instituted and in accordance with an English statute which could never extend to India14.

13

Mill’s, “History Of India”, vol. iv ,page, 223

14

Anand.C.L, “Government Of India” page.14.

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Disaffection Between Government and The Supreme Court: In the wake of the Establishment of the Supreme Court at Calcutta, disaffection arose between the government and the Supreme Court mainly under three heads: a) The courts exercise of jurisdiction over the revenue officers so as to punish them for corrupt or oppressive acts done in their official capacity in the collection of revenue and issuing of Habeas corpus to liberate those who had been confined for the non-payment of the revenue. b) The claim of the Supreme Court to try illegal Acts of the Judicial Officers of the Company done by them in their official capacity. c) Issue of writs of Capias against the native defendants residing in

Bengal, Bihar and Orissa to make them appear before the court to plead to its jurisdiction. Warren Hasting’s Attitude Towards The Supreme Court: Before the contest between the Supreme Court and the council came into the open Warren Hastings’s attitude towards the court was one of the sympathy and support. Although Hastings called it as “a dreadful clog on the government” because of some misgivings yet he was pleased with the appointment of Sir Elijah Impey as its Chief Justice. Hastings characterized him as the man of “sense and moderation”

.

Initially, Warren Hastings’s opinion was that the main defect in the Supreme Court was that its powers were not universal. His remedy was that either the Supreme Court must be “armed with a full authority” or its operation “restricted to the town of Calcutta and the commercial factories and to British subjects only beyond them”. Warren Hastings declared that “on any other footing its Jurisdiction will be eluded, or it will be an 8

embarrassment to the Government”15.But when Warren Hastings got back the leadership of the government through his casting vote after the death of one of its members of the majority, his attitude towards the court underwent a great change. Hastings then became bitterly hostile to the Supreme Court and took decisive action to contain its operation within the town of Calcutta. This conflict between the Supreme Council and the Supreme Court is brought about in many cases and one of the most important cases which bring about the conflict is Raja Nandkumar’s case. Trail Of Raja Nandkumar16: The case of Nandkumar stands in a class by itself. It brings about the conflict between Warren Hastings and the majority in the council, on the one hand and between the Supreme Court and the majority on the other.

Situation In The Background Of The Trial: 1) Case of Queen of Burdwan:- In 1774, the Queen Of Burdwan alleged

that Hastings had taken illegal bribe of sixteen thousand rupees from her to make her minor son Diwan after the death of her husband. When the council started hearing of the case, Hastings left the meeting and refused to listen to anything against himself. The meeting of the council was adjourned. 2) Case Of Munni Begum:- Munni begum was appointed guardian of the

Nawab. In 1775 it was found by the council of Murshidabad that she had spent 9, 67,693 rupees which was quite a large sum. Begum was asked to submit the accounts. In her statement of accounts she had mentioned that she has presented one lakh fifty thousand rupees to 15

Gleig: “Memoirs Of Warren Hastings”.

16

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

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Governor General Warren Hastings as gift. The allegation was in a way proved. Hastings mentioned that acceptance of such gifts was not by that time prohibited by the parliament. 3) Reason Behind The Nandkumar’s Trial:

Hastings had many enemies. Nandkumar, who was an influential Brahman of Bengal, regarded Warren Hastings with great detestation and Warren Hastings also hated him. Nandkumar had been humiliated by the upshot of the prosecution of Mohammad Raza Khan in which Nandkumar was an unrewarded tool. Now, at a time when Governor General’s Prosecution by new councilors was one of the themes of Calcutta discussion, Hastings Forbade

Nandkumar

and

showed

special

favour

to

one

Mohan

Prasad(Nandkumar’s arch enemy). Nandkumar found an ally in Fawke, an Englishman, who was not in company’s employment. On Hastings refusal to produce his correspondence with Middleton17, charged Hastings for accepting as bribe, a sum of Rs.1,04,105(one lakh four thousand one hundred five)for appointing Gurudas as Diwan and from Munni Begum Rs.2,50,000(two lakh fifty thousand) for appointing her as the guardian of infant Nawab, Mubarakud-din Daulah. Hastings had to admit that she gave him a lakh and a half when he visited her at Murshidabad, which he (later sir James Stephen) considered as entertainment money. In reaction to this Hastings left his chair, declaring all meetings without him illegal, he refused to be treated as on trail before his own council.The majority, however, voted clavering into the chair, called in Nandkumar and decided to go on with the charges. This injured the feelings of Hastings who finally determined to prosecute the man by whom he was accused with all weight of his authority.

17

Hastings refusal was either understood or misunderstood because that correspondence would show that he had been guilty of accepting bribes in connection with Rohilla Campaign.

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Facts Of The Nandkumar’s Case:After a few days, Nandkumar along with Fawke Brothers (Joseph Fawke and Francis Fawke) and Radhacharan was charged and arrested for conspiracy at the instance of the Governor General

Warren Hastings and

Barwell, a member of his council. Warren Hastings being revengeful manipulated another suit of forgery against Nandkumar which was brought by Mohan Prasad. In the conspiracy case, the Supreme Court delivered its judgement in July 1775. Fawke was fined but the judgement was reserved against Nandkumar on account of the pending case. The council protested and remonstrated but Nandkumar was tried by twelve British Jurymen who held him guilty of the offence of forgery. The Supreme Court sentenced him to death under an Act of 1728 passed by the British Parliament. The sentence of death was duly executed by hanging him on 5th August, 1775. Thus Warren Hastings fulfilled his desire through the instrumentality of his friend Sir Elijah Impey, the then Chief Justice of the Supreme Court. Criticism of the Nandkumar’s Case:Nandkumar’s trial has always been looked up with suspicion. Macaulay, Mill and a number of other historians have accused chief justice Impey of Committing a judicial murder. It has been suggested that Nandkumar was a victim of Warren Hastings Wrath and Nandkumar was tried ostensibly for forgery but in reality for his daring to bring corruption charges against the Governor General Warren Hastings. It is to mention here that Chief Justice Impey was a good friend of Warren Hastings. It therefore becomes clear that Chief Justice Impey was rightly accused of having conspired with Warren Hastings to put Nandkumar to death and his execution was a result of this conspiracy. This proposition was challenged on the ground that Nandkumar was not only tried by Chief Justice Impey but by the other judges of Supreme Court also and the whole court with the help of jury held Nandkumar guilty of 11

the crime of forgery. James Fitzjames Stephen18 stands foremost among the Historians who have justified the trial on the basis that the trial was held by four judges and twelve Jurymen, all of whom could not have been in conspiracy against Nandkumar. Stephen further says…. “Whatever connections Hastings and Chief Justice Impey or either of them may have had with the prosecution of Nandkumar, it originated in the usual way”. Beveridge was trying to establish that trial was not fair19. There are many grounds that show it clearly that the Supreme Court did not acted fairly in deciding this case. They are as follows:1) It

was

doubtful

whether

Supreme

Court

had

Jurisdiction

over

Nandkumar who was not a resident of Calcutta and that too in a case initiated on the complaint of Mohan Prasad, another native, showing that Warren Hastings prosecuted Nandkumar through a Native. 2) The Judges took the unusual course themselves by cross examining the

defence witnesses and that too very severely as a result20 of which defence collapsed. Indian witnesses were not conversant with English Law and procedure and this resulted in the confusion of witnesses. Beveridge points out that the Judges, Jury and the Council were all foreigners

unacquainted

with

the

language

of

witnesses

and

Nandkumar was himself unacquainted with the courts language. The interpreter through whom the trial was conducted was not also very proficient in the Bengali language. Two witnesses of Nandkumar were natives and they did not understand English Language properly, so

18

Stephen, James Fitzjames., “Story Of NandCoomar”.

19

Beveridge., “The Trial Of Nandkumar”

20

Roberts, “The History Of British India”, page no. 188.

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they could not understand the questions put by the Judges to them. Thereby defence weakened. 3) Two of the Judges of the Supreme Court were committing Magistrates

also and this fact must have affected the Justice, because it clearly amounted to violation of Natural Justice. Beveridge points out that Judges, Hyde and Le Maistre, were disposed to be subservient to Chief Justice Impey as he had helped in procuring their appointment 21 to the Jury which consisted of obscure men. 4) After convicting Nandkumar an application for leave to appeal to the

King-in-council was also rejected by the Supreme Court. Further the Charter of 1774 had authorized the court to reprieve and Suspend execution of a Capital Sentence and recommend the case for mercy to His Majesty. But this provision was not given effect to by the Supreme Court although such a case deserved mercy. Denial of permission to appeal before the King-in Council to Nandkumar was in nutshell, a blatant disregard of justice, Supreme Court ought to have exercised this jurisdiction in order to prove its impartiality in the eyes of law. 5) The offence alleged to be committed by Nandkumar was act done in

1770 long before the establishment of Supreme Court. He was thus tried by an Ex-post facto law in the prosecution was based on the charters. 6) The Act of 1728 under which Nandkumar was convicted had never

been formally promulgated in Calcutta and the people could not be expected to know anything about it. The Act was passed by British Parliament keeping in view the conditions of that country. It was not intended to extend the British India Act of 1728 to India upon which was based the condemnation of Nandkumar.

21

Beveridge, “ The Trial Of Nandkumar”, page no. 218.

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7) The alleged crime was not capital offence under Muslim and Hindu Law. All these observations of the case go on showing us that there were mala-fides on the part of judges of the Supreme Court and the fate which Nandkumar met was due to a pre- determined plan. To sentence an Indian to death under these circumstances by applying literally an obscure English law was nothing but sheer miscarriage of justice. The only proper thing for the court to do was to exercise the power especially given to it by the charter and no one else, to respite the execution of the death sentence and refer the case to the King-in-Council for consideration. Edmund Burke very correctly narrated the popular view in his speech on “Fox’s India Bill” that Raja Nandkumar was by an insult on everything which India holds respectable and sacred, hanged in the face of all his nation, by the Judge you sent to protect that people hanged for a Pretended crime, upon an ex-post facto Act of Parliament in the midst of his evidence against Mr. Hastings22. The trial of Nandkumar thus, rudely shocked the conscience of mankind. Lord Macaulay was much critical of his trial and clearly held that Chief Justice Impey sittings as a Judge, put a man unjustly to death in order to serve a political purpose. Nandkumar presented petition to the Council of the following effect which was translated into English after his Execution and is cited by Stephen… “ For the fault of representing at this time a just fact which for the interest of the King and the relief of the people in a small degrees made known, many English gentleman have become my enemies and having no 22

Parliamentary History, volume xxiii, page..1369.

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other means to conceal their own action, deeming of destruction of the utmost expediency for themselves revived an old affair of Mohan Prasad’s which had formerly been repeatedly found to be false, and the Governor knowing Mohan Prasad to be a notorious liar, turned him out of his house, and themselves becoming his aiders and abettors and Chief Justice Lord Impey and other Justices have tried me by the English Laws, which are contrary to the customs of this country, in which there was never any such administration of Justice before, and taking the evidence of my enemies in proof of my crime have condemned me to death. But by my death the King’s Justice will let the actions of no person remain concealed; and now that the hours of death approaches I shall not for the sake of this world be regardless of the next, but represent the gentleman of the council. The forgery of the bond of which I am accused never proceeded from me. If I am unjustly put to death, I will with my family demand Justice in the Next Life. They put me to death out of enmity and from partiality to the gentleman who have betrayed their trust, and in this case the thread of life being cut. I, in my last moment again request that you gentlemen will write my case particularly to the Just King of England”. But the prayer was unheard and respite was not granted by the council. According to Keith… “The sentence in any event should as a matter of plain duty, have been respited by the court, but Hastings private secretary intervened to prevent such action, and the councilors did nothing. No more odious crime has ever been committed by a British court whether or not on the instigation of a British Governor General. For Hastings , it had the invaluable result of showing natives that with him final power lay and a complete veil was drawn over charges which put shortly before the councilors where pressing against him with such violence. That he refused to continue meetings as Governor General and denied that they could act without him23”. 23

Keith, A, B., “A Constitutional History Of India” page -77.

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Lord Macaulay said that Chief Justice Lord Impey had acted unjustly in refusing respite to Nandkumar. No national man can doubt that he took this course in order to gratify the governor General Hastings, three or four years later, described Chief Justice Impey “as the man to whose support he was at one time indebted for the safety of his fortune, honour and reputation”. These words directly refer to the fact that chief justice Impey had assisted Hastings in Nandkumar case. The Cossijurah Case: In this case the dispute between the Supreme Court and the Supreme Council which began after the Regulating Act reached the crisis. As Lord North Naylor puts it in the House of Commons, “the judicial and the political powers were in arms against each other”. This case represented the breaking point between the government and the Supreme Court in 1779. Facts of the Cossijurah case: Cossinaut Babu (Kashinath), a native of Calcutta loaned a large sum of money to the Zamindar of Cossijurah, Raja Sunder Narain. On the money remaining unpaid for long and his requests to the Government for help in recovering the money remaining unfruitful, Cossinaut Babu, brought a suit in the supreme court against the Zamindar Raja Sunder Narain on 13th of August 1779, stating that Raja Sunder Narain as a Zamindar was liable to the court in revenue disputes as he was employed in the collection of revenue and that the loan documents were executed and the money was advanced to the Zamindar at Calcutta. The Court thus issued a Writ of Capias warranting arrest of the Raja Sunder Narain (Zamindar) subject to being released on a Bail of three lakh Rupees. The Zamindar (Raja Sunder Narain) went underground to save himself from arrest and the Writ remained thus unexecuted.

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The collector of Midnapur, within whose limits area of Cossijurah falls, informed the government of the situation and stated that the Zamindar was being prevented from collecting the land revenue. Hastings and his council consulted their Advocate General as to whether the court was entitled to pursue private debts?. The Advocate General was very doubtful whether the few remaining rights of people to whom we have left but little should be thus invaded24. Advocate General also maintained that the Regulating Act did not extend the jurisdiction of the supreme court to the Zamindar and therefore he suggested that the Zamindar of Cossijurah be told that not being subjected to the supreme Court’s Jurisdiction, he should not appear, plead, or do any act which might amount on his part to recognize that the courts authority extended to him. He also advised the government in such cases it should not employ its power in aid of the court but should leave it to the court itself to execute its processes. The government , accordingly, gave notice to the Zamindar as advised , it also published a general notification informing all land holders and Zamindars that they were subject to the Court only if they were Servants of the company or had voluntarily assumed its jurisdiction under a contract with one of His Majesty’s Subjects in case exceeding five thousand rupees and if they did not fall in any of these categories, they were not subject to the court’s jurisdiction and therefore should not pay attention to its process. The collector of Midnapur was directed by the Supreme Council to refuse any assistance to the Sheriff’s men who might require in seeing the writ on the Raja and so the Collector did not provide any assistance to the sheriff. On the writ of Capias being returned, the court proceeded with issuing a writ of Sequestration of the Zamindar’s property with a view to force him to appear before it. Sixty men headed by a sergeant of the Court were sent to execute the Writ. A complaint was brought by the Zamindar that the Sheriff’s 24

“Story Of Thompson And Garret: Rise And Fulfillment Of British Rule In India”...Pp.139-140.

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party entered his house, beated and severely injured his servants forcibly broke open and entered his Zenana Premises, committed outrages upon the place of religious worship, plundered his effects and prohibited his farmers from paying their rents. The Governor General and Council intruded the Zamindar not to recognize the Authority Of the Court or to Submit to its Jurisdiction and Employed the Military to prevent Execution of the process of the Court by apprehending the Sheriff’s Officers with all their followers. This negated the claim of the Court that at least any person alleging that he was not subject to its Jurisdiction must plead accordingly. Cossinaut Babu then brought an action for trespass against the Governor General and members of his Council individually. At first these persons entered their Appearance in the Court but when they found that they were being sued for Acts done in their public capacity. They withdraw their appearance and informed the court that they would not submit to any process which it might issue against them. They denied that their corporate acts as the government of the Presidency are done in execution of power in them by parliament “are cognizable in the Supreme Court” of Judicature or that they or answerable as individuals in this Court for the consequences of such acts. The Court took no further action against them though Chief Justice Impey also sent a small force to Cossijurah. Councils were exempt from the criminal process by the Supreme Court. They were not exempt from civil action. The Supreme Court initiated proceedings against the attorney of the Company North Naylor on the ground that being an Attorney of the Supreme Court he gave advise to the Government to defy the Courts process and even the Governor General and Council themselves were individually served with Summons of the suit of the Decree Holder, Cossinaut Babu, whose process of Execution was disturbed by them. However, the Governor General and members of his council appeared firstly but later refused to submit to the Jurisdiction of the court for Acts done by them in their public Capacity. Criticism Of Cossijurah Case: 18

As the Government violently interfered with the normal working of the court because it had asserted an unwarranted Jurisdiction over the Zamindars who were not subject thereto under the Act or The Charter. This is however, incorrect. This was the result of misinterpretation of the Supreme Court’s position. At no time the Supreme Court said that Zamindars were subject to its Jurisdiction. The Courts position was that there might be some other circumstances making the Zamindars liable to its Jurisdiction e.g., a Zamindar may be in the Service of the Company and then he would be subject to the Courts Jurisdiction and he would not be exempt from it merely he was a Zamindar. The issue of Cossijurah was different. It related to the preliminary plea regarding the Supreme Court’s Jurisdiction. The Supreme Court had a choice to decide about its jurisdiction with respect to Zamindars. The Zamindar of Cossijurah could have appeared before the Court and pleaded to its Jurisdiction which would have been accepted by the court and thereby stopping it from taking any further action against him. However, the Zamindar took a different action as he was encouraged by the Government. On the plea that Collection of Revenue was suffering, the Government resented to show of force to stop the Court’s process. This conduct of the Court was definitely reprehensible. On explanation for the behavior of the Government in this case was that Government did not like the Supreme Court should touch the Zamindar for that interfered with the collection of revenue. But there is another explanation for the Governments conduct, it is that Government did not want the Court to pronounce upon the status of the Zamindars as such A pronouncement would have deeply affected the revenue Collection whether the court Verdict was favorable or unfavorable to the Zamindar25. 25

If court held the Zamindar in service of the company court could have claimed check oppressive practice committed by them in Revenue Collection and thereby effecting revenue Collection for Government on the other hand if court decided that a Zamindar is

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

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was indefensible. Banerjee had ascribed the system of mesne process to a desire on the part of the Judges to increase their power and Patronage through increase in the Work of the Court26. Conclusion: It is, therefore, submitted here that the Nandkumar’s Trial , disclose the early notion of the Supreme Court as regards the operation of the applicability of the English law to Calcutta . The supreme court was of the view that the statute of 1728 under which Nandkumar was sentenced to death, was applicable to Calcutta, giving rise to a proof of question whether an English statute have been made applicable to the presidency town of the Calcutta or not and according to modern view it depended upon the two important questions .viz., 1. Whether the statute suited to the conditions and environment of the town concerned, and 2. What was the date on which the English Law was made introduced there? To consider the first question, under the charter only that portion of English Criminal law which was suitable to the conditions of the colony which would be introduced there. The Question therefore was whether the Act of 1728 making forgery a capital offence in England suited the conditions prevailing in Calcutta at that time. The Court specifically deliberated on this question and laid down that … The Town of Calcutta enjoyed a great commercial importance and that condition which made the Act necessary in England

existed

in

Calcutta

also

and

so

the

law

suited

Calcutta27.Chambers,J., was doubtful on this point but Chief Justice overruled him by saying that he has always recognized Calcutta to be greatly 26

Banerjee “Supreme Court in Conflict”.

27

Beveridge, however, maintains that no evidence was taken, but the matter was decided by the judges themselves.

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commercial. But it was questioned by Beveridge that the act in question was not applicable to any town in Scotland or America and Calcutta could not at the time be regarded more commercial than any of the town in Scotland and America. He also pointed out that the question of Calcutta being commercial should have been considered with reference to 1770 when the document in question was alleged to have been forged28. With respect to the second question, the Charter of 1726 introduced a Mayor’s Court, not a Court of Company, but that of the king of England in Calcutta. The law to be applied was law of England. It was implied from the terms of terms of Charter and it was accepted that it introduced into the Presidency towns the law of England both common and statute law as it stood in 1726. Again the question was whether the subsequent Charter of 1753 and 1774 introduced English law into Calcutta. This question was neither raised nor decided by the Supreme Court but it was held by the Court that English law was introduced by 1726 and had also been introduced in India from time to time. On this basis, Nandkumar was sentenced to death under the Act of 1728.However this action of Supreme Court has been severely attacked by many later critics who have held that the English law was finally introduced in 1726 and not thereafter. Thus, in their view, the Act of 1728 could never be taken in force in India until and unless it was especially extended to this country and the fact is that it was never promulgated in Calcutta. According to Keith, A.B.,.. “It is clear that the provision of English statute of 1718 for making Forgery a capital Offence was not legally in force in India”. Thus it can be concluded here that both the trial and Conviction of Nandkumar was illegal. The Supreme Court had committed a judicial murder which the history could never forgive.

28

In 1770, Bengal was hit by great Famine and one third of its population died of hunger.

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As far as Cossijurah case is concerned the crux of the case was given by Sir James Stephen who said: “The real ground of the quarrel between the Supreme Court and the Supreme Council went far deeper than any of the topics of Grievance on which so much has been said. The Supreme Court held, as they could not but hold, that everyone in Bengal, Bihar and Orissa was subject to its Jurisdiction, to this extent that he was bound, if sued in the Supreme Court to appear to plead to the Jurisdiction. The whole contention of the council of the Supreme Council was not so and if anyone not being an English born Subject or in the pay of the Company was sued in Supreme Court he was justified in taking no notice of its process”. It means it was for the Defendant to judge for himself whether he was amenable to the jurisdiction of the court or not. It may be said that the conduct of the Government in this case was reprehensible. If they had thought that the conduct of the court went beyond its legislative power, they ought to have taken the straight forward legal course of getting a direct decision from the court upon the question in which they were directly interested and testing its correctness by an appeal to the King-in-Council but instead of lawful means they resorted to violence and lawlessness. Therefore, it is hereby submitted in the light of the above given observations that the Supreme Court did not exhibit a very healthy tendency conducive to the protection of interests of Indians against the oppression of the servants of the company. It showed an anomalous character of the Supreme court in so far as it is exercised jurisdiction over Indians. The Supreme Court applied harsh English laws to the Indian conditions which proved a disaster. It was deemed necessary that the difficulties emerging out of these cases ought to be removed. Therefore, a petition signed by principal British Inhabitants of Bengal was sent to parliament against the exercise of powers 23

by the Supreme Court. Thereby the ultimate result was the Act of 1781, one of the objects of which was to provide relief to certain persons who were imprisoned at Calcutta and to indemnify the Governor General and the members of his Council and all the Officers who acted under the orders of the Government in interfering with the process of the Supreme Court. The Act Of Settlement, 1781, was passed to settle many Controversial issues as to the jurisdiction of the Supreme Court and as to the relation of the Supreme Court with the Supreme Council and the Company’s Courts.

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