Вы находитесь на странице: 1из 13





I would like to convey my gratefulness to a lot many people who have helped
and supported me in making this project.
I would like to thank my family and friends who have always been supportive
of my endeavours.
Words are inadequate in offering my deep sense of gratitude to my
Professor, Dr Vandana Singh for her precious guidance. From assigning
I this topic to instructing me on how I should move forward with my work, her
enthusiasm and knowledge have always been of utmost importance.
I would also like to thank the librarians of Dr Madhu Limaye Library who
Extended their assistance to me by helping me out consult the relevant books.
I know that despite my best efforts some discrepancies might have crept in
which I believe my humble Professor would forgive.
Thanking You All

Akshat Golia

ACKNOWLEDGEMENT ............................................................................................................... 2
TABLE OF CONTENTS ................................................................................................................ 3
INTRODUCTION .......................................................................................................................... 4
CONDITIONS PRIOR TO 1773 ..................................................................................................... 5
REGULATING ACT OF 1773 ....................................................................................................... 5
ESTABLISHMENT OF THE SUPREME COURT ............................................................................. 7
EXECUTIVE-JUDICIARY NEXUS................................................................................................. 8
ACT OF SETTLEMENT, 1781 .................................................................................................... 12
The doctrine of separation of power, more or less is governed by the principle of checks and
balance in today’s times. The generally accepted meaning of doctrine is division of executive,
legislative and judicial functions of government amongst disparate and independent bodies
similar to other significant doctrines like that of liberty, equality, etc. Separation of power is
also considered a product of western intellectual revolutions. According to Britannica
Encyclopaedia and the most acceptable proprietor of this theory Motesque, it is an ideal way
to run a government. Though the notion of the separation of power prevailed since ancient
times, it was only Montesquieu who for the first time formulated this doctrine systematically,
scientifically and clearly in his book ‘Espirit des Lois’ (the spirit of the Laws) published in the
year 1748.

He declared it the best way to safeguard liberty. This doctrine influenced the framers of the
Constitution of United States and they adopted it as a part of the Constitution of United States.
In the American Constitution, there is a system of checks and balances and the power vested
in one organ of the government cannot be exercised by any other organ. This doctrine one may
also say was accepted in India too. Under the Indian Constitution, the executive powers are
vested with the President according to Article 53 (1) of the Constitution of India, 1950. The
legislative powers are vested in the Parliament and judicial power with the Judiciary, i.e. with
the courts of India.

This paper is an attempt to trace the historical presence of this doctrine in India under the rule
of the East India Company. Particularly towards the first attempt of introducing some of check
on the administration in form of the Regulating Act of 1774 by the British Parliament.
After the battle of Plessey in 1757, the Nawab of Bengal was reduced to a mere non-entity and
real political power passed into the hands of the Company. Its servants started abusing their
authority and began to amass huge fortunes at the cost of the natives. Clive was sent to Bengal
a second time in 1765 as Governor and Commander-in-Chief to bring order out of chaos.

On his arrival, he found that the rebellion under Mir Qasim was crushed at the Battle of Buxar
and he only had to establish peace. The company was granted the Diwani of Bengal, Orissa
and Bihar by the nominal Mughal emperor Shah Alam in 1765. The company agreed to pay
annually 26 lakh rupees to the Emperor and it to retain any surplus revenue collected. The
Diwani was in fact a fiction, which Clive conjured up to legalise and regularise the position of
the Company as the de facto power in the country without however assuming the
responsibilities of government. The responsibility of administration was left to the Nawab in
exchange for a fixed sum while revenue collection was under the control of the company. This
dual system of government further lead to corrupt practices of the company. The executive was
only interested in revenue collection and since it had no one to check on it, it adopted oppressive

Another major problem was in England in the Court of Directors and Court of Proprietors.
Many Directors easily found lucrative jobs in India for their sons and relations. Hence there
was a scramble to purchase enough shares to get oneself elected to the Court of Directors.
Votes in the Court of Proprietors were manipulated so as to shield the evil deeds of servants of
the Company in India. It became the ambition of many servants when they returned home to
get into the Court of Directors by making use of the ill-gotten gains they had acquired in India.
The situation was so bad that while the company’s servants bathed in riches the company itself
was forced to ask for loans from the crown. This level of unchecked rule by the company in
India forced the crown to attempt to regulate the company’s servant and to also protect its own
interest overseas.


The Regulating Act was an act promulgated by the British Parliament to establish certain
regulations for the better management of the affairs of the East India Company. The act made
several important changes and was the first step towards some form of control over the actions
of the company. The act first off, increased the term of the company’s directors from one year
to four year and established it such that one-fourth of the directors were elected every year.
Voting power was also only granted to shareholders who held stock worth one-thousand
pounds or more. This was done so as to curtail corruption and improve the quality of the
shareholders and subsequently the directors.

The structure of the government in Calcutta was also changed such that it appointed a Governor
General and a council of four and vested in them all of civil and military powers. They
effectively controlled the administration of the states of Bengal, Orissa and Bihar. The
Governor-General as well as the council members have a term of five years and can be removed
by the King anytime on the recommendation of the Court of Directors. The Governor General’s
decision was subject to the council and he only had a casting vote in case of a tie in the council.
The Regulating act of 1773 also put the Presidencies of Madras and Bombay under the control
of the Calcutta government. Direct orders from the Court of Directors still superseded the
Calcutta government. Regulating Act was the first attempt to centralise administration of India.
The Regulating Act of 1773 prohibited any person in the civil or military establishments of any
kind, from receiving any gift, reward, or financial advantage at all, from the Indians. It also
created a court, and sent out the justices to India. This Act also raised the governor of Bengal,
the wealthiest and busiest of the EIC’s outposts, to the rank of governor-general over all EIC-
controlled India, and provided that his nomination, though made by a court of directors, should
in the future be subject to the approval of the crown; in conjunction with a council of four
leaders (appointed by the Crown). A supreme court in India was established, to which the
judges were appointed by the crown, and sent out to India.

The act also gave far reaching legislative powers to the Governor General and Council to issue
regulations, rules and ordinances for good administration. This power to legislate is only
subject to certain restrictions such as the promulgation must not be repugnant to the laws of
England, were to be reasonable and the rules so made will not be effective until published in
the Supreme Court. Any person could also appeal against such rule within sixty days of its
registration in the Supreme Court. The King-in-Council could set aside or repeal the rule upon
his own discretion.

This system allowed the company to formulate rules with greater efficiency and at the same
time allowed the Supreme court to act as an effective barrier against hasty legislation and
ensure that the rules made were reasonable and in line with the laws of England. This provision
can be seen as a precursor for the courts power of judicial review.
In the absence of any steady and appropriate judicial order, Company rule in Bengal became a
terror. The tales of cruelty and oppression committed by the Company servants got confirmed
by the show of unusual wealth of its personnel returning home. English public opinion was
roused, and upon the insistence of parliamentarians like Burke, the British government decided
to interfere. It was especially concerned about the administration of justice. Parliament passed
the Regulating Act in 1773 to regulate matters in Bengal. Beside other provisions, it provided
for the establishment of a Supreme Court replacing the Mayor's Court. The attempt was to
separate the judicial entirely from the executive limb and to place it under the direct authority
of the King instead of the Company. The attempt was to separate the judicial entirely from the
executive limb and to place it under the direct authority of the King instead of the Company.
The court was consist of a Chief Justice and two or three subordinate judges who were to be
trained English lawyers, directly appointed by the Crown. Its jurisdictional powers were to
exercise all civil, criminal, admiralty and ecclesiastical jurisdiction, and to establish rules of
practice and process, and do all things necessary for the administration of justice. In criminal
matters it was to act as the court of oyer and terminer and goal delivery as in England, for the
town of Calcutta, the factory of Fort William and other factories subordinate to it. It was also
to act as court of equity like the Court of Chancery in England. Appeals from it, both in civil
and criminal matters, lay to the Privy Council. Territorially its jurisdiction did not include the
entire population of the province. It covered the presidency town and extended over British
subjects and His Majesty's subjects residing anywhere in the province, persons, directly or
indirectly, in the employment of the company or any of His Majesty's subjects, any resident of
the province agreeing to be subject to the court in a contract with the other party if the latter
was one of His Majesty's subjects.

The King in pursuance of the Regulating Act of 1773 issued the Charter of 1774 establishing
the Supreme Court and defining more elaborately its powers and jurisdiction. The Supreme
Court was authorised to exercise its jurisdiction on British subjects residing in Bengal, Orissa
and Bihar. Appeals from the Supreme Court lay on the Privy Council. Civil matters of value
more than a thousand pagodas could appeal if they petitioned for the requisite permission
within six months from the Supreme Court’s judgement. The court was also allowed to frame
its own procedures, subject to the approval of King-in-council. The judges of the Supreme
Court were professional lawyers and were sent from England and held office during the
Crown’s pleasure.
The Supreme Court was simultaneously a court of law as well as equity. It was an effective
tool of the crown to take into cognizance the company and its officers and there corrupt
practice4s.The promulgation of the Supreme Court divorced the judiciary from the executive.
All this is not to say that the Regulating Act or the subsequent Charter was not filled with
ambiguities and errors.

Many expressions and situations were left undefined in the charter, e.g., 'His Majesty's subjects'
'British subjects', 'in the employment of the Company', Company's status and actions as diwan,
the executive-judicial relationship, and the relationship between the Supreme Court and the
Company's courts. To cap it all, the law to be applied by the court was not stated. A tornado of
anger and resentment gathered against the court. The executive disliked the court's interference
in its administrative actions. Company personnel could not tolerate court's sanction and
scrutiny over their Diwani pursuits which they thought to be a relationship exclusively between
them and the Moghul authority. Indians were none too pleased and dreaded the court's alien
laws and procedure. Its worst feature was illustrated in the famous trial of Nandkumar who was
awarded death sentence for forgery in accordance with English law. Penal sanction for forgery
in Indian law was much simpler.

Supreme Court was an instrument of justice, despite that several difficulties propped up
between the Court and the Council. The Regulating Act sought to change the old relationship
between judiciary-executive rather abruptly. The act gave specific powers to the Governor-
General and Council to legislate in Calcutta but there powers as to the Diwnai regions of Bihar,
Orissa and rest of Bengal were not specified. Calcutta was considered British settlement but
rest of territories were held as Diwani under the Mughal rule. The Supreme Court was a royal
court and shouldn’t have had any jurisdiction in these areas. This dilemma for the court laid
ground for the executive-judiciary conflict. If the jurisdiction of the court had been limited only
to the British settlement then no conflict would have arisen. But on the other had many
company officers now resided in Diwnai lands with no law to answer too so they must be
subjected to some form of control, i.e. the court be given jurisdiction over certain categories of
persons living in the area. The court was also given jurisdiction over servants and agents of
British subjects and non-British members of the company. This was felt to be necessary to
prevent excesses committed by the company servants.
Not to regard the Diwani lands as British and yet allow the writs of the Supreme Court to run
created an anomaly, a contradiction in terms and an inconsistency which resulted in obscurity
and vagueness in terms of the Act and the Charter which thus failed to define explicitly and
precisely the Supreme Court’s jurisdiction.

Before the charter of 1774, the executive had exercised control over the judiciary. The
Regulating act gave judiciary the control of the executive. The Supreme Court was an
instrument even approved by the company’s directors so as to keep their servants in India in
check. Main objective behind establishing the Supreme Court was to keep the company
servants in check or to hold them accountable for their mistakes, as the case maybe. This was
an attempt to introduce into India the concept of administration according to law. The attempt
however failed.

The Governor-General and the Council not only disliked but offered resistance to the court in
the exercise of its power. The Company had supreme military and civil powers whereas the
court had supreme judicial powers. The power of the court however were not clear.

The act gave the judges the designation of justice of peace giving them power to arrest and also
put them equal to justices in the King’s Bench in London which empowered them to issue writs
such as Mandamus and Habeas Corpus. The issue rose first off, whether as justices of peace,
the court could also arrest Indians and secondly that can the Supreme Court issue writs against
revenue officers of the company and other company courts?

The courts accepted the broad view in theory that everyone was covered under the designation
of justices as justices of peace and that the revenue officers were also subjected to the courts
writ jurisdiction but in practice this power was never used against the company officers.

The act and the charter also left unclear the relation between the Governor-General and Council
against the Court. Were the Governor-General and Council members individually responsible
for their acts done by them in the execution of their office. The executive were barred from
being tried criminally by the Supreme Court except for treason or felony.

A very hotly debated question was whether the Court could probe into the activities of the
company’s servant in the collection of revenue. Was the company’s action as Diwan subject to
the Court’s authority. The council argued that the wording of the act confined all Diwani
functions including collection of revenues solely to the Governor General and the Council. The
council further stated that there was no specific clause in the act which subjected Diwani
functions to the court’s control, and therefore could not probe into the illegalities and misdeeds
committed by the officials in the collection of revenue. The Supreme Court did not accept this
contention stating that it could not refuse to take cognizance of violence and oppression
committed in collection of revenue. The courts received multiple complaints against
company’s servants responsible for revenue collection. The court issued Habeas Corpus writs
to revenue officer to release confined persons.

Another aspect shrouded in controversy and doubt was as to the law to be applied by the court.
Indians living in Calcutta also fell under the jurisdiction of the court, will they be also subjected
to English law or will their personal laws apply? What about the Indian servants of the
company? These Indians were subjected to harsh English criminal laws, which turned the
attitude of Indians hostile towards the courts. Moreover, Indians who were not under the
jurisdiction of the Supreme Court were still required to plead before the court as to there being
alien to the court’s jurisdiction which was of great discomfort to some. The defendants in a
criminal matter were even arrested and forced to appear before the court under the writ of
Capias. These measures made the court appear as an instrument of oppression towards the

From a reading of text it is clear that three major areas of disaffection between the government
and the court emerged, exercise of court’s jurisdiction over the revenue officers, the court
trying acts of the judicial officers of the company and the issue of forcing native Indians outside
of the court’s jurisdiction to appear before it. The following few cases bring out the issues
involved in the conflict between the Supreme Court and the Governor-General and Council.

Nandkumar Trial

This case brings out the conflict between Warren Hastings and the majority of the council
on one hand and between the court and the council on the other.

Raja Nandkumar, an influential man in Bengal was encouraged by the council to bring
charges of corruption against Warren Hasting in the council. Following this, a Mohan
Pershad brought charges of forgery against Nandkumar regarding the same in the Supreme
Court. Nandkumar was tried by the court, held guilty and sentenced to death. Nandkumar
was sentenced under an obscure English statute of 1726 and given death for a crime, for
which under the Hindu or Muslim law no capital punishment is awarded. This crude
application of English law on an Indian made Indians apprehensive about the court.
The Council in 1775 also raised three major grievances against the Court that the court was
taking cognizance of suits against revenue officers, that it was issuing Habeas Corpus writs to
release defaulters and that it was issuing warrants for arrest of Indians living outside Calcutta.

In the case of Commaluddin Ali Khan the court directed the company to release
Commaluddin, a defaulter in paying taxes on bail. This action was opposed by the majority of
council since they felt it was in excess of the court’s jurisdiction. The Chief Justice of the
Supreme Court justified this order as the company’s treatment of defaulters was oppressive and
against principles of justice. In the Patna case, a retired company soldier expressed his desire
to adopt his nephew and leave to him property but died before he could do so. A tussle ensued
between the wife of the deceased and the nephew for property where the property was divided
between them. Not happy with the same, the wife approached the Supreme Court who ordered
for the arrest of the nephew. The nephew claimed that the court did not have any jurisdiction
over him but the court held that since he collected peasant revenues for the company in
exchange for a commission he was a servant and tried him. The court also took into account
the irregularities of the company law officers. This company held this to be abuse of power by
the court. The court relieved the judicial officers but punishment to commission workers of the
company sent administration into jitters.

The fight between the company and the court came head on in the 1779 case of Cossijurah,
Cossinaut Baboo loaned a large sum of money to the Zamindar of Cossijurah. On the money
remaining unpaid for long, he brought a suit against the Zamindar in the Supreme Court. The
court issued a warrant for the arrest of the Zamindar. The government told the Zamindar to not
appear, plead or do any act which might appear as him accepting the court’s authority since the
government held that the Zamindar did not come under the jurisdiction of the court under the
regulating act. The court sent a small force to seize the zamindars land which was intercepted
by a force from the Company. The court later on imprisoned the company’s attorney in court
as he had advised the company to defy the court’s orders. The Chief Impey also maintained
that while members of the Council were exempt from criminal action they were not exempt
from civil litigation. The reprehensible action taken by the government in order to stop court
processes was in light of the danger it posed to the revenue collection of the company since
Zamindars were responsible for revenue collection and if the Zamindars in anyway came under
the purview of the court then the revenue of the company itself was in danger. The court itself
was not free of blame since it first subjected Indians to the alien English law and secondly, kept
the bail amount absurdly high and in the instant case it was set at 3 lakh rupees.
The Supreme Court was disliked by all and had goodwill of none. In light of this drift between
the court and the company government other hand, reforms had to be made. In 1777, the
Directors represented to the British government their grievances in regard to the Supreme Court
and the Parliament taking cognizance of the same appointed the Touchet Committee to inquire
into the administration of justice in Bengal, Orissa and Bihar. The committee’s report led to
the passage of the Act of Settlement of 1781 to remove ambiguities regarding the Regulating
Act of 1773 and to ‘support he lawful government of the company. The tussle had been won
by the Governor-General and the Council. With the passing of the act of Settlement by the
Parliament, the ‘rule of law’ was broken into the favours of the executive. Full immunity was
given to the Governor and its council from the jurisdiction of the Supreme Court. Any act done
by any person in pursuance of an order by the Governor and the council could also not be tried
by the Supreme Court.\ The Supreme Court was to not take into cognizance any matter
concerning the revenue or any act done in collecting the revenue. Moreover, Sardar Diwani
Adalat was now accorded recognition as a court and was equal in stature to that of the Supreme
Court and appeals from both lay in the Privy Council.

The Regulating Act of 1773 and the subsequent Charter of 1774 were brought in as a
mechanism to control and keep a check on the company government. The British Parliament
felt that the company was not just a trading corporation anymore but had acquired a political
role, the company even before being granted Diwani was the true power in the sub-continent
but after being granted Diwani the company officially took a political character. The British
Parliament seeing this had to act to make sure that the Company is also put in check and that
the oppressive practices of the company servant do not go unpunished. The establishment of
Supreme Court was the first attempt at separation of power in India but it did not go
successfully. The revenue collection and profit making were the priority for the company as
well as the British government and the active resistance of the executive towards the court’s
jurisdiction was able to sway the British Parliament to enact the Settlement Act of 1781 and
greatly restrict the powers of the Supreme Court. The Court through its interpretation of the act
threatened the revenue collection of the company itself and this in turn made uneasy the British
Parliament. This judicial exercise failed due to a sudden change in the unbridled power of the
company which wouldn’t let it go unopposed.
1. "Doctrinal Influences On The Judicial Policy Of The East India Company's Administration
In Bengal, 1772-1833". Vol 12, no. 2, 1969, pp. 240-248, Accessed 11 Nov 2018.
2. Jain, M.P. Outlines Of Indian Legal and Constitutional History. 6th ed., LexisNexis, 2008,
pp. 53-93.
3. Ningade, Nagamma. "Evolution and Basic Principles of Indian Constitution". Gulbarga
University, 2017.
4. Sharma, Richa. "Brief Narration of Separation of Power in Colonial India and the Conflict
between Executive and Judiciary". Gujarat National Law University, 2015, Accessed 11
Nov 2018.