DR.

RAMMANOHAR LOHIA NATIONAL LAW

UNIVERSITY, LUCKNOW
ACADEMIC SESSION
2016 - 2017

PROJECT ON
ESTABLISHMENT OF THE SUPREME COURT
OF JUDICATURE AT CULCUTTA

SUBMITTED TO: SUBMITTED BY:

Mrs. VANDANA SINGH ASHISH AMAR TIWARI

ASSISTANT PROFESSOR B.A.LLB (HONS)

DR. RMLNLU, LUCKNOW SEMESTER III

ROLL NO 32
DECLARATION

I hereby declare that the project work entitled “The Establishment of the Supreme Court of
Judicature at Calcutta” submitted to Dr. Ram Manohar Lohia National Law University, is a
record of an original work done by me under the guidance of Mrs. Vandana Singh, assistant
professor(Law) at Dr. RMLNLU. The results embodied in the project have not been submitted to
any other university or institute or in any kind of seminar. The project is original and has been
carried out with the help of certain cases as well whose citations have been mentioned too.

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TABLE OF CONTENTS:

INTRODUCTION……………………………………………………………………..4

CHARTER OF THE SUPREME COURT…………………………………………….5

CONSTITUTION……………………………………………………………………..6

JURISDICTION………………………………………………………………………6

 Civil jurisdiction
 Criminal jurisdiction
 Ecclesiastical jurisdiction
 Admiralty jurisdiction
 Equality jurisdiction
 Writ jurisdiction

MERITS OF THE SUPREME COURT……………………………………………………8

DEMERITS OF THE SUPREME COURT………………………………………………..8

CONCLUSION……………………………………………………………………………10

BIBLIOGRAPHY………………………………………………………………………….11

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INTRODUCTION

The Supreme Court of Judicature at Fort William, Calcutta was founded by an Act of Parliament
in 1774. It replaced the Mayor's Court of Calcutta which according to the Act, “does not
sufficiently provide for the due administration of justice in such manner as the state and
condition of the Company’s Presidency of Fort William in Bengal….do and must require” 1and it
was British India's highest court from 1774 until 1862, when the High Court of Calcutta was
established. The Act specified that the Court was to consist of a Chief Justice and three puisne
judges to be appointed by the Crown and holding office during its pleasure.2 Only a barrister of
at least five years’ standing could be appointed as a judge. The Court was to be a court of record.
The court was to enjoy civil, criminal, admiralty and ecclesiastical jurisdiction.

From 1774 to the arrival of Parliament's Bengal Judicature Act of 1781 in June 1782, the Court
claimed jurisdiction over any person residing in Bengal, Bihar or Orissa. These first years were
known for their conflict with the Supreme Council of Bengal over the Court's jurisdiction. The
conflict came to an end with Parliament's passing of the Bengal Judicature Act of 1781 which
restricted the Supreme Court's jurisdiction to either those who lived in Calcutta, or to any British
Subject in Bengal, Bihar and Orrisa, thereby removing the Court's jurisdiction over any person
residing in Bengal, Bihar and Orissa.

1
Outlines of Indian Legal & Constitutional History, pg 66.
2
Sec. 13. The judges of the Supreme Court of England hold office during good behavior and can only be removed
by an address of both Houses of Parliament. This has been the position since the 18 th century. In the colonies the
tenure of the judges was ‘during pleasur’. Theoretically, therefore, the crown could dismiss a judge at any time,
but, in practice the judicial tenure was as good as ‘during good behaviour’ : Terrell v. Secretary of STATe for the
Colonies, (1953)2 Q.B. 482.

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 CHARTER OF THE SUPREME COURT

King George III, on March 26, 1774, issued a Charter establishing the Supreme Court at Calcutta
and defining more elaborately its powers and jurisdiction. The court was to be a court of record.
The Charter appointed Sir Elijah Impey as the Chief Justice, and Robert Chambers, Stephen
Caesar LeMaistre and John Hyde as puisne judges. The judges were to hold the office during the
pleasure of the Crown.

Court was empowered to hear civil cases against – the Company; the Corporation of Calcutta;
His Majesty’s subjects residing, or having any debt or property, in Bengal, Bihar and Orissa;
executors and administrators of such subjects; any person employed by, or being directly or
indirectly in the service of the Company, the Corporation, or 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 exceeded five hundred rupees.3

Court was empowered to hear criminal cases – as a criminal court, the Supreme Court was to
exercise the powers of, and act in such a manner and form, or as nearly as the conditions and
circumstances of the place and persons admitted of, as a court of oyer and terminer and gaol
delivery, in and for the Town of Calcutta, the factory of Fort William, and the factories
subordinate thereto. The Court could summon grand jury consisting of His Majesty’s subjects
resident in Calcutta to present to the Court crimes and offences within their knowledge. The
Court could hear criminal cases committed in Bengal, Bihar and Orissa by any of His Majesty’s
subjects, or a person employed by, or being directly or indirectly in the service of, the Company
or His Majesty’s subjects.

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. Each judge of the Supreme Court was to be a justice of the peace and was to have such
jurisdiction and authority as the judges of the Court of King’s Bench in England had under the
common law.

Provisions for appeal from the Supreme Court to the Kings – in – Council were made in the
Charter. In civil cases an appeal lay with the King – in – Council if the subject matter in dispute
exceeded one thousand pagodas, and the petition seeking the requisite permission was presented
to the Supreme Court within six months from the day the judgment was pronounced. In criminal

3
Outlines of Indian Legal & Constitutional History, pg 67.

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cases, the Supreme Court was to have full and absolute direction to allow or deny permission to
make an appeal to the King – in – Council.

The Governor- General, members of the Council and the judges of the Supreme Court were to be
exempt from imprisonment except for treason or felony. The Court was debarred from trying the
Governor – Governor and any member of the Council for any offence except treason and felony.
The Court was authorized to frame its own rules of procedure for the exercise of its various kind
of jurisdiction, subject to the approval of the king- in – Council who reserved to himself the right
to approve, reject, control or vary the rules of practice framed by the Court. The Court was thus
given freedom to regulate its own procedure. The Court for the most part followed the procedure
which was very much akin to that followed by the Courts in England.

JURISDICTION:

The Supreme Court was simultaneously a court of law as well as of equity. It thus constituted the
first experiment of one single court administering both common law and equity. Not only this, it
also combined admiralty and ecclesiastical jurisdiction as well. The Supreme Court may even be
regarded as the precursor of the Judicature Act of 1873, by which all the separate courts in
England were merged into one court which came to administer the various types of jurisdiction.4
Another merit of the Supreme Court was that it had power to control Company’s servants.

The territory of Bengal, Bihar and Orissa had not yet been formally declared as the British
territory subject to the Crown’s sovereignty. The fiction that this territory was held by the
Company as the Diwan of the Mogul had not yet been discarded.5 Calcutta, on the other hand,
was regarded as a British settlement. Therefore, while the provision of the Regulating Act in
relation to Calcutta were quite specific, they were quite vague insofar as they concerned Bengal,
Bihar and Orissa. The Regulating Act sought to distinguish between Calcutta, on the one hand,
and Bengal, Bihar and Orissa, on the other. While specific powers of administration and
legislation vis – a – vis Calcutta were vested in the Governor – General and Council, the Act did
not defined clearly the extent of their powers over the Diwani territory. There was no explicit
mention in the Act whether the Governor – General and Council were to have powers of
legislation over Bengal, Bihar and Orissa, or power to establish courts therein.

 Civil Jurisdiction

His Majesty’s subjects or persons employed directly orindirectly by the company.Or persons
who have voluntarily agreed in writing to refertheir disputes to the supreme court in

4
RADCLIFFE & CROSS, The English Legal System, 287, et seq.(1971).
5
As early as 1759, Lord Clive had suggested that the Crown should take over the territories in possession of the
Company, but the British Government avoided taking such an extreme step till 1858.

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cases.Supreme Court also given permission to accept cases againstthe Governor General and any
of his Council members.

 Criminal Jurisdiction

The court was not given jurisdiction over all the nativeIndian residing in Calcutta and with in the
territoryBengal, Bihar and Orissa.It was only vested with the jurisdiction over all Britishsubjects,
their servants and the persons employed by thecompany.Supreme Court had given permission to
accept the casesagainst Governor General and his council members, butcourt had no power to
arrest or imprison any of them inany action.

 Ecclesiastical Jurisdiction (Church)

The court was authorized to exercise subjects residing in Bengal, Bihar and Orissa according to
the ecclesiastical law providing in the Dioceseof London.

 Admiralty Jurisdiction

The court was vested with all the jurisdiction which wasavailable to court of Admiralty in
England in all matterscivil and Maritime and all maritime crimes.

 Equality Jurisdiction

As a court of equality, it was given all the powers which wereavailable to the High Court of
Chancery in in England.Any person felt aggrieved could approach the Chancellorwhich did
justice according to his conscience and notbound by any technicalities of law.

 Writ jurisdiction

It was the most important jurisdiction available in the court by the issue of the prerogative writs
in the nature of mandamus, certiorari, procedendo, it could effectively control all the courts
subordinate to it as well as other authorities created by the Company.6

The prerogative writs are mentioned below:

MANDAMUS- A judicial writ issued as a command to an inferior court or ordering a person to

perform a public or statutory duty.

CERTIORARI - A writ or order by which a higher court reviews a decision of a lower court.

6
BM Gandhi’s Landmark’s in Legal and Constitutional history, tenth edition, pg 113.

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PROCEDENDO - In Common Law jurisprudence, procedendo is one of the prerogative writs. It
is a writ that sent from an appellant court to the lower court with an order to proceed with the
judgment.

MERITS OF SUPREME COURT OF JUDICATURE

1. Derives its authority from crown.

2. Civil and criminal jurisdiction

3. Rules now require approval from King in Council

4. Court fees was regulated.

5. Empower to appoint advocates.

6. Writ power.

7. Enabled judiciary to control executive.

DEMERITS OF SUPREME COURT OF JUDICATURE

1.Relationship between governor general and council and supreme court not defined: The
provisions of the Regulating Act regarding the relation between the Supreme Court and the
Governor General and Council were obscure. Could the Supreme Court take cognizance of the
acts done by them in execution of their office? Were the member of the Council answerable
individually for such acts in the court?7 The Act or the Charter drew no distinction between their
governmental or individual acts, and they appeared to be subject to the court for both. Governor
general and council rejected the authority of court. Thus it became source of annoyance.

2. Relationship between Mofussil Adalats and Supreme court not defined : Whether they were
subordinate to the supreme court or not? With the passage of the Regulating Act, there came into
existence in Bengal, Bihar and Orissa, two distinct and independent judicial systems. One was
the Company’s system in the mofussil, self – sufficient in itself. The other was the Supreme
Court, a royal court sitting at Calcutta, and deriving its authority from the British Crown and
parliament. Had the court’s jurisdiction been confined to Calcutta, the points of contact between

7
Outlines of Indian Legal & Constitutional history, M.P. Jain pg, 72.

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the two judicial systems might have been few. But , as the Supreme Court did have functions to
discharge in Bengal, Bihar and Orissa over certain specified categories of persons, where the
Company’s judicial system also functioned, conflicts between the two systems became
inevitable.

3. Jurisdiction beyond the Calcutta was not defined. Court could issue the summons even for
people outside the Calcutta: When a case was brought against anyone in the court, the first
question to be settled was whether he was subject to its jurisdiction or not. The court took the
view that the defendant should appear before it and plead to its jurisdiction and only then it could
decide whether or not he fell within its jurisdiction. If the court decided that he was exempt from
its jurisdiction, no futher action would then be taken against him. This however, meant that every
Indian inhabitant of Bengal, Bihar and Orissa had perforce to appear before the court at least
once to plead to its jurisdiction whenever a case was brought there against him. Even people
were detained in jail till decision.

4.Courts applied English Law in India: The Regulating Act left wholly untouched the question of
law to be administered by the Supreme Court. It had been created on the foundation of the
Mayor’s Court which was a court of English law. Therefore the Supreme Court was also to
administer English Law – “ the unregenerate English law, insular, technical, formless, tempered
in its application to English circumstances by the quibbles of judges.8 The Supreme Court, unlike
the preceding Mayor’s Court was to decide cases among Indians residing in Calcutta. Many
Indians also fell within its jurisdiction as servants of the Company. It was not clear whether
English law or their respective personal law was applicable to them.

5.Criminal Law applied in India was harsh: The English Criminal law which the court
administered was very severe and harsh. It would be no exaggeration to call it as the ‘hanging
law’ as a large no of offences were punishable with death. The judges of Supreme Court had the
legal knowledge and they applied the law in all its harshness and technicality which made things
very difficult for the Indians.

Punishment which was given by the judges of Supreme Court was very harsh. It is evident in
many cases. One such case was trail of RajaNand Kumar’s case (1775)9 : RAJA NAND
KUMAR , influential man in Bengal brought charges of corruption against Warren Hastings. He
was found guilty and directed to remit the amounts.Few days later, Mohan Prasad filed certain
charges of forgery against Nand Kumar. Nand Kumar was found guilty and was sentenced to
death. In trail defence witness were cross examined by judges, defence collapsed. The court also
rejected the application for grant of leave to King in council. Two broad legal issues-a. Was nand
kumar under jurisdiction of Supreme court?b. can a person be sentenced to death for forgery?
For first issue it was plead that nand kumar was not resident of Calcutta in 1770 when the

8
ILBERT, Government of India, 52 (1951).
9
Outlines of Indian Legal & Constitutional History, MP Jain, 8th edition.

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offence was committed.For second, how British law can be extended to Calcutta.HISTORIANS
CALL THIS JUDICIAL MURDER.

Another landmark case was Cossijurah Case (1779): Cossinaut Baboo filed case of debt against a
zamindar, the rajah of cossijurah, the zamindar was indebted to Cossinaut, in the affidavit Baboo
stated that rajah was in service of company as a revenue collector thus in the jurisdiction of
supreme court. Meanwhile the matter was referred to Governor and council at calcutta where it
was stated that matter was not in jurisdiction of Supreme court. Council asked to ignore the
process of court. Court sent to arrest zamindar but council sent more force to prevent. Dead lock
was created.

This case brought into defects of the Charter.Charter did nor demarcate the jurisdiction of court
and Governor –General – in council.Confusion as supreme court issue the writ of capias against
the council, which council disobey.Dignity of supreme court lowered.Thus , the supreme court
established under the 1774 Charter , became an institution which was disliked and dreaded
equally by the officers of the government and especially Indians.

CONCLUSION

The regulating act of 1773 established a supreme court at Fort William, Calcutta. This Supreme
Court consisted one Chief Justice and three other regular judges or Puisne Judges. Sir Elijah
Imphey was the first Chief Justice of this Supreme Court. The Supreme Court was the supreme
judiciary over all British subjects including the provinces of Bengal, Bihar and Orissa. This was
the starting point of Modern Constitutional History of India, under the British. Though a
Supreme Court was established, but still it was not above the Company. The act of 1773 was
obscure with regard to the relation of the Supreme Court with the Government of Bengal. The
Supreme Court subjected the company to the control of British Government. Later an
amendment in this act was made (The amending act of 1881), in which the actions of the public
servants in the company in their official capacity were exempted from the jurisdiction of the
Supreme Court. The Supreme Court was also made to consider and respect the religious and
social customs of the Indians. Appeals could be taken from the provincial courts to the
Governor-General-in-Council and that was the final court of appeal. The rules and regulations
made by the Governor General-in-Council were not to be registered with the Supreme Court.The
Court was thus given freedom to regulate its own procedure. The Court for the most part
followed the procedure which was very much akin to that followed by the Courts in England.

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BIBLIOGRAPHY:

PRIMARY SOURCES:
 Prof. M P Jain : Outlines of Indian Legal & Constitutional History 6th
edition , 2008
 B.L. GROVER AND S. GROVER : MODERN INDIAN HISTORY – S. CHAND,2007
 BM GANDHI : Landmark’s in Legal and Constitutional History 10th edition

SECONDARY SOURCES:
 The supreme court established under the 1774
charter<http://www.slideshare.net/cheshtapatentagent/the-supreme-court-established-
under-the-1774-charter>
 Regulating Act 1773 – Indian Legal& Constitutional
History<https://ilchslcu.wordpress.com/2015/08/24/regulating-act-1773/>
 shodhganga.inflibnet.ac.in/bitstream/10603/7888/9/09_chapter
<http://shodhganga.inflibnet.ac.in/bitstream/10603/7888/9/09_chapter%202.pdf>
 Judicial System Of East India Company | Junaid Iqbal Awan - Academia.edu
<http://www.academia.edu/5106252/Judicial_System_Of_East_India_Company>
 Understanding the Creation of the Indian Judicial System –
Academike<http://www.lawctopus.com/academike/understanding-the-creation-of-the-
indian-judicial-system/>
 The Regulating Act, 1773 - An overview | The Lex-Warrier<http://lex-
warrier.in/2015/05/the-regulating-act-1773/>

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