Working of the Supreme

Court at Calcutta
CRITICAL ESTIMATE
Although the intentions of the Act were good, due to
inexperience of the policy makers defective drafting of
the provisions, there were many defects
The act was vague on many points
There was also lack of coordination between executive
and judiciary
Defects in the provisions
Conflict between Governor General and
Councillors- The British Parliament made the mistake
of sending out 3 Councillors who were new and
ignorant about India. They were prejudiced against
Hastings and other Company officials. Several times
Hastings found himself outvoted by the majority of the
Council
The ‘imminent necessity’ undefined- Although the
Presidencies of Madras and Bombay were made
subordinate to Bengal yet they were authorised to take
independent decisions in case of ‘imminent necessity’.
Defects in the Provisions
Undefined position of the Company- The
Company was holding its powers from both the Crown
and the Mughal Emperor. Its legal position in India
was that of the Diwan of the Company. So the Crown
couldn't assume sovereignty on the diwani lands. The
Act remained vague in its terminology on vital issues.
It was difficult to maintain distinction between the 2
spheres of Company’s authority as agent of the Crown
and as an officer of the Mughal Emperor.
Defects in the Provisions
Conflict between the Judiciary and the Executive-
Both the Supreme Court and the Governor-General
and Council were constituted under the same Act by
the Crown. Each claimed superiority over the other as
the Regulating Act failed to define their mutual
relationship.
Vague terms and wide interpretations –
Jurisdiction of the Court was confine to “British
subjects” but the term was not defined
Defects in the Provisions
Uncertain law- The Act was silent as to what law the
court will administer- law of the plaintiff/ defendant,
Hindu/Muslim law
Conflict between Company’s Courts and the
Supreme Court- They derived their authority and
jurisdiction from 2 different sources. The Act made the
jurisdiction of the Supreme Court partially concurrent
with that of the Adalats
Conflicts between Council and the SC- The Act wasn’t
clear whether the Council in its function of revenue
collection was exempt from jurisdiction of the court
Supreme Court and the Nizamat
Case of Radhacharan – Case of conspiracy against
Fawkes, Nandkumar and Radhacharan instituted by
Hastings.
Majority in the Council pleaded that Radhacharan,
being a vakeel of the Nawab could claim “ the rights,
privileges and immunities allowed by the Law of
Nations and the Statute Law of England to the
representatives of Princes”
Nawab’s position as an independent sovereign- He
exercised criminal justice, had a royal mint, and a
body of troops
Hastings tried to prove that the Nawab’s authority was
a mere delusion
Chief Justice held that in effect all power lay with the
Company including military power.
All acts of sovereignty of the Nawab was with the
consent of the Company’s representatives
On many occasions the court also issued process
against the servants of the Nizamat Adalat including
the Naib Nazim
Writ of habeas corpus was issued against the Naib
Nazim
Supreme Court and the Diwani Adalat
The Council complained about the interference of the
court in revenue matters
They had 3 grievances:
1. Court was taking cognizance of suits against revenue
officers
2. It was issuing writs of habeas corpus to liberate those
confined by revenue authorities for non-payment
3. Court was issuing warrants for “arrest on mesne
process” against Indians residing in Bengal, Bihar
and Orissa
Case of Commaluddin
Commaluddin, a revenue farmer was arrested without
bail by the Calcutta Revenue Council on grounds of
arrears of revenue
Although it was customary to allow bail in such cases he
was not allowed
He approached the court for a writ of habeas corpus
Court held that in such cases the defendant should be
allowed bail till the inquiry into his obligation to pay
was completed
It directed the Council to accept bail for Commaluddin’s
appearance
Council saw this as an encroachment on their diwani
rights
It contended that diwani rights were exclusively vested
in the Council
Commaluddin was arrested again, obtained a writ of
habeas corpus and was finally discharged by the court
Impey justified this on 2 grounds:
1. In a case of this nature, customary to take bail and
hence the Court’s orders
2. It had been the established practice to demand rent
from the undertenant before demanding or
imprisoning the farmer
3. He asserted that every person was entitled to
protection of English law from the oppressions of
collectors or any other government officers
Case of Saroopchand
Saroopchand was held liable for payment of Rs.10000
as balance of revenue
He contended that he had advanced a loan of Rs.10000
to John Shakespeare, a member of the Dacca Provincial
Council, Shakespeare denied the transactions
The Council committed him to custody till the time
the amount was paid
Shakespeare was also present in the meeting where the
decision to confine Saroopchand was taken
On an application for habeas corpus the court held it
to be an arbitrary abuse of power and that the Revenue
Council should sue him elsewhere as and not decide
the claim itself as it was a matter of contract arising
between him and the Council
Gora Chand Dutt v. Hosea
Gora Chand sued Mirza Jalleel for the recovery of
some amount. Hosea, superintending member of the
Murshidabad Council not only dismissed the action
made by Gora Chand but also made a decree accepting
the counter-claim made by the defendant in a
statement made before him.
He also seized the properties of the plaintiff even in
the absence of any suit filed by Jalleel.
Dutt sued Hosea for the irregularities committed by
him
The Advocate General of the Company was of the
opinion that the irregularities committed by Hosea
were indefensible so they must compromise with Dutt
or they will lose their case in the Supreme Court
The Council however insisted that it was for the first
time that an action had been brought for acts done in
judicial capacity as a Diwani Adalat and it wanted to
know whether such an action was maintenable
The Supreme Court was of the view that it wouldn’t
intervene unless it was a case of manifest oppression.