Charter of 1600

 On 31st December 1600, Queen Elizabeth I granted a Charter

to the London East India Company to trade into and from the
East Indies for a period of 15 years.
 The company came into existence as juristic person.
 Charter is an official document granting rights.
 Title of the Company-The Governor and Company of
Merchants of London trading into the East Indies.
 Exclusive trade rights were given to the company.
 Legislative Powers of the Company.
 Company’s legislative power was very limited-to make only
by laws, ordinances and rules and regulations for the good
governance of the company.
 For due observance of the laws, the company could impose
punishments, penalties and fines.
 Could not impose harsh punishments
 Critical analysis of the powers of the company in 1600
 The legislative authority was given to the company in order
to enable it to regulate its own business and maintain
disciplines and was not intended for acquisition of dominion
in India.
 In practice-inadequate legislative powers for maintaining
disciplines amongst its servants while on long voyages.
 The laws and punishments were to be reasonable and not
contrary to the laws, statues or customs of England.
 Charter did not intent to confer the power to legislate for and
to govern some territory.
 No power to decide the cases of capital offences and to
prescribe death sentence.
 The legislative powers conferred on the company by this
charter is of historic importance as it is the germ out of which
the Anglo Indies Code were ultimately developed

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 Powers granted in 1601
 The company invoked the crown’s prerogatives
 A Commission was issued to the commander in chief of each
voyage separately, empowering him to inflict punishments
for capital offences like murder, mutiny
 Powers granted in 1615
 On 14th December 1615- the Crown gave general power to
the company to issue such commissions to its captains.
 Thus the power of the company in this regard was subject to
the limitation that in capital offences of murder and mutiny
the trial should be by a jury of 12 servants of the company.

Charter of 1623

 On February -4 1623 James I granted to the company the

power of issuing commissions to any of its Presidents or
chief –Officers in its settlements authorizing him to punish
offences committed on land by the company’s British
servants
 To inflict suitable punishments on them including death,
subject to the condition that capital punishment could be
inflicted in case of mutiny, murder or other felony-after trial
by jury.
 The company got adequate authority to enforce discipline
amongst the servants on the high seas as well as on Indian
Soil.
Charter of 1661

 The Charter issued on 3rd April, 1661, by Charles II

 It has a special significance in the Indian legal history
 The company was empowered to appoint a governor and
council at its factories
 In addition to other powers, the Governor and its council
were authorized to judge all persons belonging to or living

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 under the company whether civil or criminal according to the
laws of England and to execute judgment accordingly
 In places, which had no Governor and Council, the chief
Factor and Council were empowered to send offenders for
punishment either to a place where there was a Governor and
Council or to England.
 The Charter of 1661-
1. Authorized the Company to try and punish all persons living
under it, including the Indians
2. Opened the doors for the introduction and application of
English law in India, and
3. Conferred judicial powers on the executive, viz., the
Governor and Council.
 Charter of 1600 1661
 1600
 Purpose of charter was to maintain discipline amongst its
servants.
 Company’s purpose was limited up to making trade in India.
 It was restricted:
 In respect of persons it was applicable only to its servants.
 In respect of punishments no harsher punishments can be
inflicted.
 Legislative powers were limited
 1661
 It conferred wide judicial powers on the Company to
administer justice in its settlements.
 The power of the company was extended to the company’s
servants as well as persons living in the Company’s regime.
 It authorized all punishments-including death sentences.
 The purpose of the charter was to create judicial system for
the company’s territorial possession.
 This indicates that the Company was no longer a trading
company but was becoming a territorial power as well.
 In 1687 the seat of President and council was transferred
from Surat to Bombay and Surat lost its Pre eminent position

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 of being Company’s principal trading stations in West India.
It was subordinated to Bombay.
 The Important role was played by the three
presidencies-Madras, Bombay, and Calcutta.
 In the initial years –these presidencies were only trading
stations. But later on they became seats of power .Earlier the
purpose of the Company was limited only to trade.
 Later on the Company assumed the political functions as it
acquired a territory.
 The three territories of Madras, Bombay, Calcutta were
known as Presidency town s and the territories around these
presidencies were known as mofussil.
 The early centers of British power in India were three
presidency towns-Madras, Bombay and Calcutta.
 Actually the study of this periods reveal that initially the
judicial system at presidency towns was designed to
administer justice to Englishmen but with passing of time,
the Indian population was increased in these settlement so
some adjustments were made in the judicial system to
provide justice to these people also. But it was heavily
oriented towards the English legal system.

Establishment of factory at Madras and
Judicial system in Madras
 3.2
 Madras
 Madras was the first presidency town established by British
people in India.
 The growth of the Judicial system in Madras can be studied
under three phases-before 1726
 1639-1665
 1639-22nd July an Englishman, Francis Day acquired a piece
of land on the eastern sea-coast from a Hindu Raja of
Chandragiri for the East India Company.
 It was known as Madraspatnam.

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 The company constructed here a fortified factory named St.
George in 1640.
 In this fort the majority of people living were Europeans. So
it was known as white town. While the village near the fort
was inhabited by the native Indians and so it was known as
black town.
 The settlement comprising both the white and black towns
was known as Madraspatnam.
 The Raja Empowered the Company with full authority to
govern the whole city of Madras
 Administrative set up
 Status of Madras- Agency
 Head- Agent+ Council
 Agent administered the settlement with council.
 It was subordinated to Surat because Surat was the only
presidency town at that time.
 Affairs of the settlement were mostly commercial. No
complicated administrative problems
 Judicial system
 The Agent and the council were authorized to decide both
civil and criminal cases of English people residing at St.
George.
 Very meager information is available during the early judicial
system in the Madras settlement.
 Raja granted the rights to administer justice in black town to
English people but they did not interfere and allowed the old
traditional courts to govern the natives.
 In old native system, Choultry court was administering
justice in Madras.
 This Court was presided over by the village head known as
Adigar.
 An Indian native Kannapa was appointed first Adigar in 1644
to decide petty civil and criminal cases.
 But there were some charges of Bribery and corruption
against him and he was removed from his office.

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 Inquiries in this case were made by the English people.
 Agent and council held Kannapa guilty and dismissed him
from his office.
 Consequently European persons were appointed to preside
over the Choultry court from 1648 onwards
 Thus during the period from 1639 to 1661 two separate
bodies were administering justice in Madras:
 Agent and council in white town &
 Choultry court in Black town.
 In serious cases reference was made to Raja but he always
insisted that accused must be punished according to the
provisions of English Law.
 No fixed procedure was laid down to decide cases.

 The Second Phase: 1665-1686

 Extensive power and delay in justice
 Charter of 1661 conferred wide powers but did not become
immediately operative
 A change came in 1665 due to one important case which
proved a turning point
 Case: Mrs. Ascentia Dawes was brought under the trial
before the Agent and the Council on a charge of murdering
her slave girl. The agent and council referred this matter to
the company’s authority in England. The company decided to
make operative the charter of 1661 and raised the agent to the
status of Governor
 With the effect of Charter of 1661 the judicial power of the
governor and council was extended to the Englishmen and all
other who were living in this settlement.
 The Agency of Madras thus became Presidency in 1665
 Trial of Mrs. Dawes
 Her case was decided with the help of jury consisted of six
Englishmen and six Portuguese. The Jury found her guilty of
the murder but not in “order and form”
 It was a confusing statement. Governor wanted clarification

6
 from the jury to decide whether guilty or not- the Jury
declared her not guilty. She was acquitted. The Governor and
council were not lawyers and not well versed in law. So they
felt difficulty in deciding such legal issues and complications.
So they wrote a letter to the company requesting to provide
assistance to them of a person better skilled in law. But
company did not send lawyers to Madras.
 Important Points
 The quality of justice was not of a higher order
 Charter of 1661 stipulated administration of English law but
none of the judges –Government and council had an
elementary legal knowledge.
 The charter was a dead letter from the practical purposes
 The governor and council did not function regularly
efficiently or earnestly.
 Strenshyam Master-1667-1681
 In March 1678 the governor’s court resolved that they would
sit twice in a week.
 Choultry was reorganized.
 Third Phase 1686-1726
 There were some problems like- Infringement of company’s
monopoly of trade granted by the charter of 1600.
 Some independent merchants were doing unauthorized trade
and traffic against the tenor of grant so the company had to
suffer loss.
 Increasing crimes of piracy.
 Because of these reasons a need was felt to establish a court
having maritime jurisdiction.
 Charter of 1683
 Consequently on August 9 1683 Charles II granted a charter
to the company authorizing it to establish one or more courts
at such place or places as it might direct
 consist of a person learned in “civil law” and two merchants
appointed by the company.
 This court would have following powers:

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  To hear and determine all cases mercantile and maritime in
nature,
 concerning persons within the charter limits of the company;
 all cases of trespasses,
 injuries and wrongs done or committed on high seas within
the charter limits of the company,
 cases of forfeiture and seizures of ships of goods which came
for the purposes of trade within the company’s monopoly
area.
 Charter of 1686
 April 12 1686 James II issued a new charter
 With same provisions
 Prescribed civil rather than common lawyer as the head of
the Admiralty courts
 That court was known as Admiralty because of an
international character and its dealing with maritime trade.

Merits and Defects of the Regulating Act 1773.

1. Improvements in the constitution of the company
The constitution of the company was improved by the Regulating
Act.
The term of the directors of the Company before this Act-1year,
after this act-4 years
4years-directors could work efficiently
2. Centralization of authorities
The Governor General and Council of Calcutta Presidency
constituted the central executive authority.
The civil and military govt. was vested in them

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Bombay & Madras were under the control and superintendence of
the Governor General and Council in Calcutta in matters of war
and peace
Establishment of strong central government which could meet the
Indian Princes or powers in the battlefield with united Armed
Forces of the Company’s Government.
3. British Government’s Control over the Company
The control made effective
Directors of the Company were made responsible
Obligatory for the directors of the company to place regularly
before the Secretary of State all affairs of the Govt. in India,
Company’s correspondence and Revenue related matters.
4. Governor General & Council’s power to make rules and
regulations
Can make rules for the good order of Civil Government of the
Company’s settlements at Calcutta and other subordinate factories
and places
Can make rules and regulations according to the local needs
Check was put on this legislative powers
Legislative powers under the supervision of the supreme Court
5. Establishment of the Supreme Court at Calcutta
The Act authorized to establish Supreme Court at Calcutta
Judges of the Court were expert in law
Judicial administration was brought under the control of the
professional lawyers
Appointment and removal of the judges were not put in the hands
of the company's executive authority.
They were appointed by British Crown and they were to hold
office during the Crown’s pleasure
The Act made the Supreme Court independent of the executive
control
This Court –with wide jurisdiction
It was empowered to superintend the Court of Collector, Court of
Requests, Quarter Sessions

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Supreme Court was authorized to administer common law and
equity both, whichever it thought better in the interest of justice
The same authority to apply both laws, so less chances of
conflicts.
6. Impartial Administration
Fair and impartial administration in the company’s settlements in
India
Express provisions relating to prohibition on acceptance of
presents, donations, gifts or rewards-for Governor General,
Councilors, Judges of the Supreme Court, Civil and Military
officers
Prohibition on Private Trade
Defects of Regulating Act
Uncertainty was the main defect
The extent of the powers of the Governor General and Council
was uncertain
Extent of the jurisdiction of the Supreme Court under the Act was
uncertain
Relation between the Governor General and Council and the
Supreme Court was uncertain
Relation between the Adalats in Bengal, Bihar and Orissa and the
Supreme Court was uncertain
The Act failed to define the various terms used therein like “Her
Majesty’s subjects”, “British Subjects” etc.
1. Defects relating to the composition of the Executive
Decisions of the Council were taken by majority and the
Governor General was allowed only casting vote.
The Councilors sent from the England were suffering form the
superiority complex and they were prejudiced against the Governor
General Warren Hastings.
A conflict between the Governor General and his Council arose.
Since the majority was against the Governor General, Warren
Hastings, he found it very difficult to take decisions on policy
matters
Efficiency of the executive was lessened due to this conflicts

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2. Uncertainty
Uncertainty as to the relation between the Governor General and
his Council of the Calcutta Presidency and the Governors and their
councils of other presidencies
The term imminent necessity was not defined
3. Uncertainty as to the legislative powers
It was not made clear whether or not the rules and regulations so
made by the Governor General and Council were to applied to the
territories of Bengal, Bihar and Orissa
As Regards Calcutta, the Rules could be made because it was
under the British Sovereignty.
But the Power to make rules and regulations for the terrtories of
the Bengal, Bihar and Orissa was a debatable issue.
These territories were under the Mughal Sovereignty.
Regulating Act was intentionally made vague.
4. Uncertainty as to the jurisdiction of the Supreme Court
Uncertainty as to the jurisdiction, powers, and position of the
Supreme Court and its relation with the Governor General in
Council and the Company’s Adalats
It failed to define with certainty the extent of the jurisdiction of
the Supreme Court. it was stated that the Supreme Court would
exercise its jurisdiction over all British subjects and all his
Majesty’s subjects residing in Bengal, Bihar and Orissa and
Persons employed by or directly or indirectly in the service of the
Company or any of his Majesty’s subjects and also the inhabitants
of the territories of Bengal, Bihar, and Orissa who voluntarily
entered into contact with a subject of His Majesty to submit the
disputes to the jurisdiction of the supreme court provided amount
involved was more than Rs. 500
2. The other debatable issue was whether or not the Supreme
Court had jurisdiction over the farmers of revenue and the
Zamindar responsible for collecting revenue for the company on
commission basis in the territories of Bengal, Bihar and Orissa
The Supreme Court on the ground for the company on
commission basis on the ground that such Zamindar should be

11
treated indirectly in the service of the Company and so they were
under the jurisdiction of the Court
Governor General and council opposed to it.
3. Another controversy arose as to whether or not the Supreme
Court had jurisdiction over the Company’s revenue officers
engaged in the collection of revenue in Bengal, Bihar, and orissa.
The Regulating Act 1773 & The Charter of 1774 both did not
contain any specific and clear provisions on this issue.
4. There was much confusion as to the relation between the
company’s Adalats. The Company’s Adalats were established in
Bengal, Bihar and Orissa.
The Company's Adalats were established in these territories under
the Mughal Emperor
Supreme Court was to exercise certain categories of persons in
Calcutta and territories in Bengal, Bihar and Orissa.
5. The Regulating Act and the Charter of 1774 both failed to
define the relation between the Governor General in Council and
the Supreme Court
Uncertainty as to the Law
Uncertainty and confusion as to the law to be administered by the
Supreme Court
There was no express provision as to be law administered by the
Supreme Court.
From this discussion we can say that the Regulating Act was
disastrously ambiguous at many points.

Supreme Court
At Calcutta
Established in 1774
Supreme Court
Regulating Act 1773
S.13
Royal Charter of 1774
At Fort William
Composition of the Court

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Consists of a Chief Justice and three other judges
Barristers of England and Ireland of not less than five years
standing were qualified to be appointed as judges
Judges were appointed by the Crown and held office during His
Majesty’s pleasure
Salary of judges- fixed
8000 pounds -CJ and 6000Pound- Judges
Jurisdiction of the Court
Supreme Court had five kinds of jurisdiction
1. CIVIL JURISDICTION
Of Two Kinds:
Territorial and Personal
In case of Calcutta-the Court had a territorial jurisdiction and so
civil matters relating to all persons, arising within the jurisdiction
of the Court.
Beyond the Presidency limits-and within the Presidency of

Bengal, Bihar and Orissa the Court had only personal jurisdiction
The suit can be filed against the following categories of persons:

the East India Company

The Mayor and Aldermen of Calcutta

Any of His Majesty’s subjects who resided or held any property

within the provinces of Bengal, Bihar and Orissa

The executors and the administrators of the persons in above
category
Any person who was at the time of filing the suit or at any time
of occurrence of the cause of action was in the employment, or
directly or indirectly in the services of the Company or Mayor and
Alderman of Calcutta and
Any other person who agreed in writing with any of His
Majesty’s subject that if cause of action exceeded Rs. 500 the
dispute shall be decided by the Supreme Court.
In all other matters the supreme Court had original jurisdiction
but in the last matter it had appellate jurisdiction
Appellate jurisdiction-in the last matter-if the matter was
pending before or decided by any of the Company's courts could

13
be brought before the Supreme Court for decision on a petition
filed by any of the parties in the matter.
CRIMINAL JURISDICTION:

Criminal jurisdiction of the Supreme Court was extended to all

British subjects residing within the territory of Bengal, Bihar and

Orissa
Only the British persons and their servants employed with the

Company were under its jurisdiction

Other natives –not subject to its jurisdiction

The Supreme Court had to follow as far as possible, the procedure

of English Courts
Worked as a Court of Oyer and Terminar and Goal delivery in and

for the town of Calcutta, the factories subordinate to it

No jurisdiction to try Governor General and the members of the

Council or the judges of the Supreme Court except in cases of

treason and felony.
Mercy petition were referred to the Crown in England on the

recommendations of this Court

ECCLESSIASTICAL JURISDICTION:
The Supreme Court had the same jurisdiction over the British
subjects in India as the ecclesiastical courts in England at that time.
It functioned as a court of testamentary and probate jurisdiction
It appointed guardians and keepers for infants’ and lunatics’
properties.
ADMIRALTY JURISDICTION:
The Supreme Court had the same admiralty jurisdiction in all
cases civil and maritime and in all maritime crimes committed
upon the high seas at that time. In trying such cases, the Court took
help of petty jury.
Other powers of the Supreme Court:
It was a court of record-it had power to punish for its contempt.
Its Justices were appointed as justices of Peace throughout the
three provinces of Bengal, Bihar and Orissa.
With same jurisdiction and authority as the Judges of the King’s
Bench in England

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All governors, commanders, Magistrates, Officers, and ministers,
civil or military, and all subjects within the provinces of Bengal,
Bihar and Orissa were required to assist and obey the Supreme
Court powers, jurisdiction and authority.
APPEALS:

Appeals against the decisions of the Supreme Court could be filed

before the King- in Council in all civil cases valued for 1000
Pagodas or more.
In criminal matters- and appeal could be filed in King in Council

only through Supreme Court.

The Court had absolute power to allow or refuse an appeal or to

allow it subject to the terms laid down in it.

Working of the Supreme Court
Sir Elijah Impey was the first Chief Justice,
Judges-Rober Chambers, John Hyde and Le Maistre
Started functioning towards the end of 1774.
A first British Court in India Consisting of Lawyer judges
Fully independent of the control of Company's Government in
India
Its jurisdiction was so wide that every legal wrong of any kind
could be redressed by it
Subjection of all British subjects to its jurisdiction ensured the
rule of law.

Trial of Raja Nand Kumar 1775

Background:
 Nandkumar a Brahmin, a big Zamindar and very influential
man in Bengal
 During period of Clive, he was considered to be a loyal
Indian to the East India Company
 On account of his loyalty, he was considered as Black
Colonal
 There were two groups in Governor General and Council

15
  Majority Against Governoer General
 Nand Kumar was encouraged by majority to bring certain
charges of Bribery and Corruption against Warren Hastings
 Raja Nand Kumar- in March 1775 gave a letter to Francis- a
Councillor, containing certain complaints against warren
Hastings
 Letter: Nand kumar stated that in 1772 Warren Hating had
accepted from him –as bribe more than one lakh ruppes for
appointing his son Gurudas as Diwan.
 Second Charge against Warren Hastings that he accepted
from Munni Begum ass Bribe-one lakh and fifty thousand
ruppes for appointing her guardian of the infant Nawab
 The letter was presented before the Council at the meeting by
Francis- a councilor
 Monson moved a motion that Nand Kumar should be called
before the Council
 Warren Hasting was the presiding authority as GG-opposed
Monsons’s motion, stated that he would not sit in the meeting
in the character of a criminal and he would not acknowledge
the members of the council to be judges
 Barewell supporter of GG, suggested that Nand Kumar
should file his complaint in the Supreme Court because the
Supreme Court and not the Council was competent to hear
this matter
 But Monson’s motion -supported by majority
 Hastings dissolved the meeting but majority members of
Council opposed this authority to deny meeting
 Majority-appointed Clavering in place of Hastings

Clavering Presided over the Meeting

 He called Nand Kumar before the Council to prove his

charges against Warren Hastings
 Nand Kumar was briefly examined by majority

16
  After that the majority members of the council declared that
charges leveled against Warren were true and directed warren
Hastings to –Deposit in the Tresury of the Compnay Rs. 3,
54,105 which was accepted by him from Nand Kumar and
Munni Begum as bribery
 The Members –not competent to decide the case
 Warren was displeased by this
 The event annoyed Warren
 He began to hate Nand Kimar

Facts of the Case:

Shortly after Nand Kumar’s accusation of Warren Hastings, Nand
Kumar, Fawkes and Radha Charan were prosecuted by Waren and
Barewell for Conspiracy aginst them

The event indicates Warren Hastings’s retaliatory motive to ruin

Nand Kumar
Along with Conspiracy- forgery charges were put against Nand
Kumar

For Conspiracy case Supreme Court punished Fawkes with fine

But reserved judgment against Nand Kumar on account of the
charge of Forgery against him
Analyses
In May 1775 Forgery charge against Nand Kumar was presented
before the Supreme Court by Mohan Prasad
Charge:- Nand had forged a bond of five years before (in 1770)
The charge against Nand was brought before Supreme Court by a
native Mohan Prasad
The real mover –Warren Hasting
Thus Nand was tried by the Supreme Court with the help of Jury
and found guilty and sentenced to death under the Act passed by
British Parliament in 1728.
Several Attempts were made to save Nand Kumar

17
The defense Council on behalf of Nand presented an application
before Supreme Court granting leave to appeal to the King n
Council but the application was rejected by it
The application to Supreme Court to recommend the case for
mercy to the British Crown
But Supreme Court refused to forward it
Death sentence was executed and Nand Kumar was hanged in on
5th August 1775

Critical Appraisal of the Case:

 The legality, validity and fairness of the trial has been a

debatable issue
 There was some sort of conspiracy between GG. Warren
Hastings and CJ Impey to put Nand Kumar to death
 On their return to England they were impeached by the
House of Commons

CRITICAL EXAMINATION
1. Whether the Forgery Act of 1728 under which Nand Kumar was
tried and convicted was extended to Calcutta?
- this Act made Forgery a Capital punishment
IMPEY_the Act was applicable to Calcutta and therefore Nand
could be tried and convicted under it
IMPEY’s Opinion Based on Following Grounds;
 English Law –introduced in India in 1726 and thereafter by
1753, Forgery Act enacted before 1753 was thus applicable
a) Even before the establishment of the Supreme Court the
English Criminal law including the Forgery Act 1728 had
been administered in India by English Courts e.g. in 1765
Radha Charan Mitra was prosecuted for forgery and
sentenced to death but directors of the company pardoned
him
 Calcutta was a British Colony and therefore the Forgery Act
was applicable to it and nand Kumar was resident of Calcutta

18
Impey was supported by Justice Hyde and Justice Le Maistre
But justice Chambers did not agree with his view.
Grounds on which Forgery Act 1728 was not applicable to India:
a) English law was introduced into Calcutta in 1726 by the
Charter of 1726 and therefore these English Laws which
were in existence up to 1726 came to be regarded as having
been introduced in to Calcutta but laws enacted thereafter
were to be applicable to Calcutta only when they were
expressly made applicable to it
b) The Forgery Act of 1726 was not formerly promulgated in
Calcutta and was not known to the natives (including Nand
Kumar) and therefore it was unfair and illegal to prosecute
and punish him
c) The Forgery Act 1728 was enacted in England in special
circumstances. For commercial development. But for Indian
circumstances did not require such Act.
d) The Forgery Act 1728 was repugnant to the customs and
traditions of theIndian People
e) Nand Kumar was tried and convicted under the post facto law.
The offence has been committed in 1770 before
establishment of the Supreme Court and tried in 1775.

2. Whether Raja Nand Kumar was under the jurisdiction of the

Supreme Court?
The Supreme Court had jurisdiction over all inhabitants of Calcutta,
whether Englishmen or natives
As regards –outside Calcutta only English men under the
jurisdiction of SC
Nand was inhabitant of Calcutta but at the time of commission of
offence of forgery he was not resident of Calcutta, he was brought
and detained in Calcutta
The Accused Nand and the accuser Mohan Prasad both were
natives and not inhabitants of Calcutta
Besides the offence was committed before the establishment of

19
Supreme Court

3. Whether the Trial was fair and justified?

a) The witnesses were cross examined by all the judges of the
Supreme Court
b) After trial leave for appeal was not granted
c) Request to forward application for mercy was not granted
d) Friendship between Impey and Warren Hastings judiciary
was used for Political Purposes.

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