Tracing the history and development of civil and criminal procedure during the colonial rule and thereafter, AFREEN ALAM sheds light on how the administration of justice in British India was always tinged with racial discrimination against native Indians.
gave the British Parliament the power to regulate the affairs of the East India Company for the first time. The Act gave recognition to the Government of Calcutta and also set up a Supreme Court at Calcutta. Further, the Presidency towns of Bombay and Madras were brought under the control of the Governor-General of Bengal, Warren Hastings. HE Regulating Act of 1773
By virtue of this Act, all the people living in these areas were to be administered by the rules made by the Governor-General and the Supreme Council of Bengal, and the adjudication of justice was to be done according to the new laws set up by the British.
Earlier, there were two different systems of laws in place in India depending upon the personal status of the parties, namely, the Hindu law for the Hindus and the Muslim law for the Muslims. The British unified the legal system, and from then on, all the people living in the region had to follow the system given by the British. However, the native Indians were racially discriminated against, during the process of adjudication of justice.
Ever since the Act came into existence, all people within the Company’s territory were subject to the jurisdiction of the courts established by the Company. The British-born subjects were amenable only to the jurisdiction of the Crown Courts.
In 1787, for the first time in Bengal, it was provided that if a British subject filed a suit in a Company’s Court, which had the jurisdiction with respect to the other party but did not have the jurisdiction over a British subject, then he had to write a bond to be bound by the decision.
In 1793, Lord Cornwallis prohibited the British subjects from residing beyond 10 miles of Calcutta unless they executed a bond to be bound by the jurisdiction of the Mofussil civil courts in matters up to the value of INR 500. However, in matters beyond that amount, they were subject only to the jurisdiction of the Supreme Court of Calcutta. The same scheme was followed in Bombay (starting 1799) and Madras (starting 1802).
The Charter Act of 1813 provided that the British subjects residing, trading, or holding immovable property beyond 10 miles from the Presidency limits could be sued in the Company’s civil courts of the place, subject to a benefit that the appeal against the decision of such court could be filed only in the Crown Courts and not in the Sardar Diwani Adalats (wherein the natives filed their appeals).
Thereafter, in 1814, it was announced that those cases in which a British subject, a European or an American was a party could not be heard in courts of Munsifs and Sadar Ameens. This meant that the matter could be heard only by the District Court that was usually presided by an English judge.
In 1827, due to a petition by certain British subjects, this provision was amended and the Courts of Sadar Ameens were authorised to take cognisance of such cases. But in 1831, Lord Bentinck reversed the position prohibiting the jurisdiction of courts with Indian judges over such persons.
Section 107 of the Legislative Council of India Act that was passed in 1836 abolished the privileges enjoyed under the Charter Act of 1813. It also extended the jurisdiction of all civil courts, except that of the Munsifs in Bengal and Sadar Ameens and District Munsifs in Madras, to all persons, without any distinction of birth or descent.
Then by an Act of 1839, the Munsifs were also given jurisdiction against all persons, but only in matters connected with arrears or extractions of rent. The only exceptions left in civil matters, in the courts of Munsifs in Bengal, and Sadar Ameens and the District Munsifs in Madras, were also abolished in 1843 and 1850 respectively, in Bengal and Madras. Thus, the racial discrimination in civil matters finally came to an end in British India in 1850.
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According to the Regulating Act of 1773, the British subjects were within the criminal jurisdiction of the Supreme Court at Calcutta only, and the courts in the Mofussil had no jurisdiction over them. In 1790, Lord Cornwallis authorized the magistrates in the Mofussil to send British subjects before the Supreme Court for trial if they found any prima facie case against them on inquiry.
In 1793, the British Parliament authorized the Governor-General in Council to appoint a Justice of Peace, to be given the power to apprehend British criminals, take evidence against them, and appear for trial with them before the Supreme Court at Calcutta. Under the authority of this provision, by Regulation II of 1796, all Magistrates were appointed as Justice of Peace. A similar policy was adopted in Bombay and Madras in 1807.
The Charter Act of 1813 authorized the Magistrate of the district to act as a Justice of Peace and to punish British offenders in the case of assault, forced entry or other injury accompanied with force with a fine not exceeding INR 5,000, and failing the payment of fine, with two months’ imprisonment. However, such convictions could be removed by the courts of Oyer and Triminer and Gaol Delivery by a writ of certiorari.
At this time, only covenanted servants of the Company or other British inhabitants could be appointed as the Justice of Peace. In 1832, a provision was made by which Indian natives were also qualified to become the Justice of Peace, but only within the Presidency towns. Outside the Presidency towns, this provision was extended only in 1923.
Section 46 of the Charter Act of 1833 stated that:
“The Government of India could not make a law without the previous sanction of the directors, which authorises any court other than the Supreme Courts to sentence British subjects or their children to death or which abolishes the court so chartered.”
This provision implied the extinction of all other privileges in favour of British subjects.
In 1843, the Indian Legislative Council Act abolished the privilege of removing by a writ of certiorari to the Supreme Court, in the convictions of British subjects by the Justices of Peace in Mofussil, and provided that an appeal would lie against such convictions to the same courts and according to the same rules as provided in the case of convictions made by Magistrates in the exercise of their ordinary jurisdiction.
In 1872, the revised Code of Criminal Procedure came into existence, but it also maintained the disparities in so far as only the courts presided over by a British judge could try British criminals, and that also in minor offences involving punishment not exceeding imprisonment for one year or fine or both. The more serious offences could be tried only by the High Courts. This disparity brought a sense of inferiority and misery among the Indian judges. These Indian judges were also considered lesser than and subordinate to their British colleagues.
Racism marked social interactions in the Presidency towns where the Indian origin judges were barred from entering prestigious clubs, had their luggage thrown off trains, and were sometimes frowned upon at high-class dinner tables. The native judges were also paid much less than their British counterparts for the same work.
In 1884, the Ilbert Act provided a mixed jury consisting of Indians and Europeans or Americans for the trial of British subjects. It was only in 1923 when the Criminal Procedure (Amendment) Act put all persons subject to the jurisdiction of the same courts and abolished all disparities existing so far. However, the only disparity still left was the right of the British subjects to be tried by a jury consisting of Europeans or Americans (the same right was given to Indians wherein a jury consisting of a majority of Indians were present in their trial).
Finally, after the independence, the last remnant of racial discrimination was done away with the passing of the Criminal Law (Removal) of Racial Discrimination Act, 1949.
So, in the sphere of criminal justice, the discrimination between the Indian and British subjects continued till the independence of the country.
Also Read: Shadow of Cornwallis on Indian Legal System
The trial of Raja Nand Kumar
A significant case of racial miscarriage of justice is the case of Raja Nand Kumar. He was a rich zamindar in Bengal, and was very loyal to the Company. Some members of the Council instigated Nand Kumar to bring charges of bribery and corruption against Governor-General Warren Hastings.
In his complaint to the Council, he alleged that Hastings had accepted over INR 1,00,000 as a bribe to install his son as the Diwan. He also mentioned that Hastings had accepted INR 2,50,000 from Munni Begum as a bribe for appointing her as the guardian of the minor Nawab Mubarak-ud-Daulah. He was able to prove those charges in front of the Council and became the Governor General’s enemy.
Soon after this, he was charged with and arrested for conspiracy, and later another charge of forgery was added. He was put on trial before the Supreme Court with a jury of 12 Englishmen presided over by Chief Justice Impey, who was a friend of Warren Hastings. The Supreme Court convicted him on the charge of forgery (under the Forgery Act of 1728 passed by the British Parliament and not formally recognised in India) and sentenced him to death. He was the first person in India to be executed by hanging, ordered by a court of justice.
The Supreme Court had no jurisdiction to try his case since the alleged forgery happened in 1770, before the establishment of the Supreme Court at Calcutta. Further, Nand Kumar was an Indian Hindu (also not a resident of Calcutta) and was supposed to be tried at the local Faujdari Adalat.
This case is often known as the first judicial murder in India, which was committed to teach Indians a lesson that they could not go against their British overlords.
(Afreen Alam is a Delhi-based researcher and writer. She is a final year law student at Jamia Millia Islamia, Delhi. The views expressed are personal.)