JAMIA MILLIA ISLAMIA

Faculty of Law

LEGAL AND CONSTITUTIONAL HISTORY ASSIGNMENT

“SALIENT FEATURES OF SUPREME COURT AT

CALCUTTA”

Submitted by: - Nayyar Qutub Chisti

Submitted to: - Ms. Varsha Gulaya
Course: - B.A.LL.B. (regular), 3rd Semester
2021-26

Serial No: - 39
(202101333)

1
 Acknowledgement

I, Nayyar Qutub Chisti, am extremely grateful for

having the opportunity to work on this project. I am
thankful to VC, Jamia Millia Islamia as well as to
the Dean, Faculty of Law.
I want to thank my project supervisor Ms. Varsha
Gulaya for giving me valuable inputs during the
course of this assignment. I am thankful to all those
who helped me during the completion of this
assignment. Indeed, without the help of all these,
this assignment would not have been possible.
Working on this assignment has been insightful
journey for me and it has certainly helped me to
have a comprehensive understanding of my subject
matter.

2
 TABLE OF CONTENT

SR TITLE Page No.

NO.
1. INTRODUCTION 4
2. COMPOSITION 4-5
3. JURISDICTION 5-7
4. POWERS AND APPEALS 8-9
5. MERITS 9
6. DRAWBACKS 10-11
7. CONCLUSION 12
8. BIBLIOGRAPHY 12

3
 INTRODUCTION

The Company had settlements at Surat, Madras, Bombay and Calcutta. The earlier courts were
established and managed by the company themselves. These courts were not recognized in the
British Legal System and there was no proper justice system. The Charter of 1726 for the 1 st time
established Crown Courts in India which had recognition in British Legal System and it created
uniform system of justice administration in all the three presidencies. It extended the jurisdiction
of King-in-Council to these courts. The judicial system was much clearer, definite, and uniform
from earlier system in which each presidency had its own system. After the battle of Plassey, the
company became a much considerable political power in India.
Regarding the Indian legal history, The Regulating Act of 1773, and The Act of Settlement, 1781
were 2 major enactments. Earlier judicial system was executive-ridden. The regulating Act of
1773, passed by the British Parliament, tried to create for the 1st time a separate and independent
judicial organ in India. It tried to overhaul the management of the company. It superseded the
provisions of Charter of 1753. Section 13 of Regulating Act of 1773 contained detailed provisions
for establishment of and authorized King George 2nd to issue a charter for that purpose. In
furtherance of the same King George 2nd issued the Letters Patent to establish a Supreme Court of
Judicature at Fort William. On 26th of March, Charter of 1774, a Charter of Justice was issued for
the establishment of the Supreme Court. The Supreme Court was established on 22nd of the
October, 1774. It began functioning in January of 1775.1
In this Essay we will deal with composition, jurisdiction, and powers of the Supreme Court.

COMPOSITION

The Supreme Court was composed of 1 chief justice and 3 other judges or Puisne Judges.
Their qualification was barrister of England or Ireland with at least five years of standing. The
mode of appointment was being directly appointed by Crown and holding office to His
Majesty’s pleasure. There was no fixed tenure. The salaries of Chief Justice and other judges
were £8,000 and £6,000 respectively.
The charter appointed Sir Elijah Impey as the 1st Chief justice. Robert Chambers, Stephen
Caesar Lemaitre and John Hyde were appointed as other 3 judges by the King.

1
1- The Supreme Court of Judicature 1774, available at: https://www.legalserviceindia.com/legal/article-
2433-the-supreme-court-of-judicature-1774.html (last visited on 10 November 2022)
4
The appointment of independent Judges and directly by Crown indicated the promotion of
separation of power as earlier judges were among the governor and his council or company’s
servants. 2

JURISDICTION

The jurisdiction of Supreme Court can be divided in 5 kinds of jurisdiction namely civil,
criminal, equity, ecclesiastical and admiralty jurisdiction. We will deal with them one by one.

Civil Jurisdiction-
The civil jurisdiction can be divided into 2 kinds namely territorial and personal. Territorial
jurisdiction means relating to an area or territory. The Supreme Court had a territorial
jurisdiction within the territory of Presidency of Calcutta. It means civil suits relating all persons
and things within the territory of Presidency of Calcutta fell within the Civil Territorial
Jurisdiction of Supreme Court.
The Supreme Court had a Personal Civil Jurisdiction beyond the presidency limits of Calcutta
and within the provinces of Bengal, Bihar and Orissa. It means this was applicable outside the
territory of presidency of Calcutta and inside the limits of provinces of Bengal, Bihar and
Orissa. This kind of jurisdiction was applicable in 6 categories of persons. The 6 categories
were-

1- The East India Company

2- The Mayor & Aldermen of Calcutta.

3- His Majesty’s subjects who resided or held property within the provinces of Bengal,
Bihar and Orissa.

4- The executors and administrators of the above-mentioned persons.

5- Any person who was in the employment or directly or indirectly in the services of the
company or the Mayor and Aldermen at the time of occurrence of cause of action or at
the time of filing of suit.

6- Any person who agreed in writing with a Majesty’s subject that the dispute shall be

2
Ibid.
5
 decided by the Supreme Court if the cause of action exceeded Rs. 500. In this category
of jurisdiction, any matter either pending or decided by company’s courts could be
approached to the Supreme Court on thee petition of any of the parties to the matter.

The Supreme Court had Original Jurisdiction in all kinds of categories except 6.3

Criminal Jurisdiction-

All British subjects living in Calcutta and within the provinces of Bengal, Bihar and Orissa were
in the Criminal Jurisdiction of Supreme Court except Governor-General and his council
members and judges of the Supreme Court (except in cases of treason or felony).4 It is to be
noted that only British Subjects and their servants and persons in employment with the company
were in the criminal Jurisdiction of Supreme Court. Other natives in the Calcutta and Bengal,
Bihar and Orissa were excluded from the jurisdiction of the Supreme Court.5
Procedure- The Supreme Court followed the procedure as followed by the English Courts and it
worked as a Court of Oyer and Terminer and Goal Delivery in and for the town of Calcutta, the
Factory at Fort William and the Factories subordinate to it.6 Oyer and Terminer means one of
commissions by which judges assize sat to hear and determine according to law. 7 It employed
services of Grand Jury and Petty Jury. The Supreme Court had powers to reprieve or suspenmd
the execution of any capital punishment if in its opinion it was fit for mercy. In that case the
mercy petitions were referred on the recommendations of Supreme Court to the Crown in
England with reasons and final decision was of Crown.8

Equity Jurisdiction-

The Supreme court had the same equity jurisdiction as the High court of Chancery had at that
time.9 A Court of Equity is that court which applies the principles of equity as opposed to law.

3
M.P. Singh, Outlines of Indian Legal & Constitutional History, 36 (Lexis Nexis, Gurgaon, 8th edition, 2021)
4
Id. at 37.
5
V. N. Paranjape, Indian Legal and Constitutional History, 61 (Central Law Agency, Prayagraj, 8th edn., 2021)
6
Supra note 3 at 37
7
Oyer and Terminer, available at: https://en.wikipedia.org/wiki/Oyer_and_terminer (last accessed on 10 November
2022)
8
Supra note 5
9
Supra note 3 at 37
6
also known as equity court, chancery court.10 Equity is a particular body of law developed by
English Court of Chancery to where the law is not flexible or inadequate to deliver fair
resolution.11 The supreme Court at Calcutta had the same Jurisdiction. It could deliver
judgement on the principles of Justice, Equity and Good Conscience and not bound by
technicalities of law.12

Ecclesiastical Jurisdiction-

The ecclesiastical jurisdiction signifies jurisdiction of church. The Supreme Court had same
jurisdiction as the ecclesiastical courts in England had at that time, over British subjects residing
in Bengal Bihar and Orissa as same manner as in Diocese of England13. In that capacity, it
assumed testamentary and probate jurisdiction and also appointed guardians for infants and
lunatics and their properties. It could grant Probates of Wills and also letters of admiministration
of goods, chattels and other effects of British Subjects dying intestate within the territories of
Bengal, Bihar and Orissa.14

Admiralty Jurisdiction-

The Supreme Court had the admiralty jurisdiction in all cases civil and maritime and all criminal
matters committed on vessels, ships, ferries and the high seas and off-shores of Bengal, Bihar
and Orissa with the assistance of petty jury. This jurisdiction extended to all His Majesty’s
subjects and persons, directly or indirectly, in the services of Company living in the territory of
Calcutta, Bihar, Bengal and Orissa.15

Writ Jurisdiction-
It being a superior court could issue writs to courts and officers subordinate to it, inclusive of
Court of Collector, Court of Requests, Quarter Sessions, Sheriffs etc. it could issue writs of
certiorari, mandamus, error or procedendo to these.16

10
Court of Equity, available at: https://en.wikipedia.org/wiki/Court_of_equity (last accessed on 11 November
2022)
11
Equity (law), available at: https://en.wikipedia.org/wiki/Equity_(law) (last accessed on 11 November 2022)
12
Supra note 5 at 62
13
To the extent of a Bishop
14
Supra note 5 at 62
15
Ibid.
16
Ibid.
7
 POWERS OF SUPREME COURT

1- The Supreme Court was a court of record as it had the power to punish for its
contempt.17

2- It was a court of Equity so it could administer justice as per the principles of Equity and
Good Conscience.18

3- It had the power to make rules and regulations for its own functioning which were to be
approved by King-In-Council.19

4- Supreme Court had the power to nominate three persons to Governor-General and
Council and out of those 3, it had to select one person as Sheriff whose function was to
execute the decrees of the court and detain persons ordered by the Court.20

5- It was authorized to enroll attorneys and advocates.21

6- It could appoint subordinate officers for the proper functioning but their salaries were to
be approved by Governor-General and Council.22

7- It could regulate court fees subject to the Supreme Council.23

8- The Justices of Supreme Court were appointed as Justices of Peace in the Region of
Bengal, Bihar and Orissa. They had the same jurisdiction as the Judges of King’s Bench
in England. In that capacity, they could issue prerogative writs same as which can be
issued by King’s bench like habeas corpus, mandamus error or procedendo, certiorari. 24

9- All the Governors, Commanders, Magistrates, Officers and Ministers and all subjects
within the region of Bengal, Bihar and Orissa were under obligation to assist and obey
the powers, authority, and jurisdiction of the Supreme Court.25
It could be said that the Supreme Court had wide powers for proper functioning and maintain its

17
Supra note 1
18
Supra note 5 at 60
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
23
Ibid.
24
Supra note 3 at 37.
25
Ibid.
8
independence.

Appeals- In civil cases appeal could be filed to King-In-Council valued more than 1000
pagodas. In criminal matters, the appeal to King-In-Council could be filed only by the approval
of Supreme Court. It can allow, refuse or allow appeals subject to conditions. 26

MERITS

1- 1st British Court to consist of Professional Lawyer Judges.27

2- Independent of control of Company’s Government in India as the Judges were directly

appointed by Crown and held office during his pleasure. Their tenure was free from
wishes of Governor-General and Company.28

3- Separation of Judiciary from Executive.

4- Judges had adequate knowledge of English law and how to apply them.

5- Earlier the Englishmen residing outside the Calcutta fell beyond jurisdiction of the
judicial system so they could commit crimes with impunity as there was no court to try
them. But now all British Subject fell in the Jurisdiction of Supreme Court.29

6- The Jurisdiction was of widest amplitude that the legal wrong of every kind could be
remedied.30

7- All the British subjects were made subject to the jurisdiction of Supreme Court which
upheld rule of law.31

8- Law made by the Governor-General and Council were not valid unless registered and
published in the Supreme Court. It denoted Checks and Balances. 32

26
Ibid.
27
Supra note 1
28
Ibid.
29
Supra note 3 at 38.
30
Ibid.
31
Ibid.
32
Supra note 3 at 35.
9
 DRAWBACKS

Despite many good features, the ambiguities in then provisions lead to many conflicts which
exposed the drawbacks of the working of Supreme Court.

1- Strained relationship between Governor-General and Supreme Court due to ambiguities

in the provisions of Regulating Act of 1773. The relationship was not clearly defined.
There was a provision which stated that governor-general and his council would not be
liable to the Supreme Court except in cases of treason and felony. There was no
provision in what will happen in other matters of civil and criminal nature against
them.33 Also, there was no mention of what acts would constitute treason and felony.
There was no mention of acts done in private capacity.

2- The relationship between governor-general and Supreme Court in matters of diwani

functions was not definite. The governor-general and his council claimed exclusive
rights of diwani functions and maintained that they or the person working with them in
that function would be free from the jurisdiction of Supreme Court. On the other hand,
Supreme Court maintained that although it will not go into the ordering and management
of diwani functions but it had jurisdiction in matters of oppression, corruption,
malpractice, and violence in the collection of land revenue34. It was not clear whether the
zamindars working under the company for collection of revenue on commission basis
were to be considered employees of company or not. 35

3- The Supreme Court on the one hand and the company’s hierarchy of Courts on the other
hand created two parallel and independent judicial system. Unclear relationship between
the Company’s courts in mofussil area and Supreme Court. Whether they were
subordinate to Supreme Court? Or whether Supreme Court could hear appeal or issue
writs was obscure.36

4- The jurisdiction of Supreme Court outside the limits of Presidency of Calcutta was not
clearly defined. The supreme court used to issue subpoenas to witnesses to appear before
it although they lived outside the limits of Calcutta. SC believed they had the

33
Supra note 3 at 38.
34
Ibid.
35
Supra note 5 at 66.
36
Ibid.
10
 jurisdiction.37

5- Several terms were not clear. ‘British subjects’, ‘subjects of His Majesty’, ‘subjects of
Great Britain, of us and our heirs’, ‘persons employed directly or indirectly in the
services of company.38

6- The territories of Bengal, Bihar and Orissa were still under Mughal Sovereignty. The
Supreme Court shouldn’t have jurisdiction over them as it was an English Court
applying English Law.39

7- The jurisdiction of that of Judges of Peace was used by Supreme Court Judges within the
territory of Bengal, Bihar and Orissa and issued writs outside the territory of Calcutta
which was not liked by people, especially Britishers who used to escape the Jurisdiction
of all Courts.40

8- The Supreme Court applied English law in Criminal Matters to Indians who neither
knew nor were accustomed to it. It was done with all harshness. 41

9- Natives living with in the presidency limits of Calcutta will be governed by their own
laws or British laws in disputes among themselves. This fact was also not clear.42

10- The jurisdiction of Supreme Court about Native was not very clear. Though the natives
living outside the Presidency of Calcutta were outside its jurisdiction still if a proceeding
was started by one against a native, he must appear before the court to plead lack of
jurisdiction by travelling a long distance on his own costs. 43

11- The laws applied were not very clear. Although the Charter of 1726 had applied the laws
as such as they were at that time, the position regarding the laws made thereafter was not
clear. This was parties before the court were in a strange territory, they did not know
which law would be applied to them. For this they depended on attorneys who charged
very High Fees.44

37
Supra note 3 at 39.
38
Ibid.
39
Supra note 5 at 65.
40
Supra note 3 at 39-40.
41
Supra note 5 at 65.
42
Supra note 3 at 40.
43
Ibid.
44
Ibid.
11
 CONCLUSION

The establishment of Supreme Court at Calcutta was a major step taken in the direction of
separation of judiciary and independence of it. In spite of many drawbacks it suffered from, it
was a welcome step which paved the way for many reforms. It was the 1st attempt at establishing
a Court free from the influence of Company and Governor-General and his council. It was an
attempt at separating the Judiciary and Executive. It was the first court consisting of professional
lawyer judges. It included within its jurisdiction all the British Subjects who were earlier used to
escape the courts by committing crimes outside the limits of Calcutta. Most of the drawbacks
were related to the conflict between executive and judiciary which was inevitable as it was for
the 1st time an independent and separate judicial system was organized. The significant problem
with the functioning of the Supreme Court in Charter of 1774 was the application of English
Criminal Law to Indians who neither knew neither were accustomed to it. Even the attorneys
charged high fees and this criminal law was applied with all harshness, that is the major
drawback. it would have been better if the relationship between executive and Judiciary were
clearly defined.

BIBLIOGRAPHY

1- M.P. Singh, Outlines of Indian Legal & Constitutional History, (Lexis Nexis, Gurgaon,
8th edition, 2021)
2- V. N. Paranjape, Indian Legal and Constitutional History, (Central Law Agency,
Prayagraj, 8th edn., 2021)

3- The Supreme Court of Judicature 1774, available at:

https://www.legalserviceindia.com/legal/article-2433-the-supreme-court-of-judicature-
1774.html (last visited on 10 November 2022)

12