Vol. 17, Part II · pages 51–55

28 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Andrew Dunlop, esq.,a British-born subject, and a Provincial Magistrate at Poona. After considerable discussion, the writ was ordered to issue, and was made returnable to the Court on the 15th of September then next, it was translated by order of the Court into the Mahratta language, and duly served on Pandoorung Ramchander. A return was made and filed to this writ in these terms :– “I, Pandoorung Ramchander Dumdurre, am the relation and friend of the Peishwah. I never in my life have been the servant of the English Government, or of the English. At the time the Company’s Government took this country, they gave me word I should live without fear or molestation. Depending upon that, I remained in Poona; and as for my grandson, Moro Ragonath, I am his grandfather; he was placed under my care, that I might take care of him according to the usual custom. He, the said boy, is fourteen years old; for that reason, according to the Shaster of the Hindoos, he is without knowledge; he is bound to behave agreeably to the orders of the person under whose charge he lives; and further, it is necessary to take care of the property and wealth of the boy; more than this, there is nothing, and there is nothing more done (by me to him,) than by those to whose care a boy is delivered, or the usual orders of seniority in a Hindu’s family. Should I by any chance do more or less, the same being made known to the Adawlut at Poona, it would be immediately stopped. After Moro Ragonath’s grandmother died, he was delivered into my charge, according to the rule, and I agreed to undertake that charge, in order that my grandson’s wealth might not be ruined. Without the leave of those by whose authority I took the charge upon my head, I cannot relinquish it. Dated 10th of September 1828, 1st of Bhadrapad Sood Shalabar 1750, the name of the year being Surodharee.” This return was objected to on two grounds; firstly, that there was no return, “paratum habeo corpus ;” secondly, that no reason was stated to excuse the disobedience, but that the writ ought not to have issued, which was a reason the Court ought not to receive; and an attachment against Pandoorung Ramchander was moved for. The Judges took time to deliberate on the question, and on the 29th of September they delivered their judgement, that a writ of alias habeas corpus should issue, returnable on the 10th of October then next.

29AND THE LORD SAID UNTO— The case of Bappoo Gunness [1 Knapp 6] came before the Supreme Court on an application for a writ of habeas corpus ad subjiciendum, to the head gaoler of the gaol at Tannah, directing him to produce the body of Bappoo Gunness, then a prisoner in his custody. The writ was granted on the affidavit of one Babool Ranjee, stating that he had applied to the gaoler for a copy of the warrant under which Bappoo Gunness was confined, and that it had been refused to him. The writ issued on the 10th, and was made returnable on the 19th of September 1828. A return to it was made by the nazir of the court of Adawlut of the northern Konkan, and the gaoler to whom the writ was directed in these terms:– “That before the coming in of the writ, Bappoo Gunness was taken and detained in our custody by virtue of a certain order in writing of the Adawlut Court of the zillah of the northern Konkan, in the Mahratta language, and in the following form:” which was set out, and stated in effect that Bappoo Gunness having been found guilty of embezzlement, was sentenced to two years imprisonment, and a fine of 350 rupees, or in default of payment of that sum to a year’s additional imprisonment. The body of the prisoner not having been produced on the 19th, the Judges would not suffer the return to be read, and directed an attachment to issue against the gaoler. On the 26th the attachment was set aside on payment of the costs, at the instance of the Advocate-General, and Bappoo Gunness having been brought into Court, the return was read, and held insufficient, because the authority of the Adawlut Court was not stated in it; four days time was allowed to amend it, the prisoner being in the mean while committed to the gaol at Bombay. The return was not amended within that time, the Advocate-General stating to the Court that the reason why it had not been amended, was because Government would not suffer the authority of the Provincial Courts to be questioned; and Bappoo Gunness was discharged from custody. Denman, (Common Serjeant,) and Alderson, for the Petitioner,–It is perfectly clear that the Supreme Court of Judicature possesses the power of issuing a writ of habeas corpus directed to all the King’s subjects, of whatever description, resident within the territories of Bombay, in order to set free the body of any of the King’s subjects detained by them.

30 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Supreme Court of Bombay derives its several powers from the charter by which it was constituted, in pursuance of the Act of the fourth of the present King [Dec. 8, 1823. See Morley’s Dig. Vol. II. p. 638]. The original necessity of granting those powers to the Courts of Law in our East Indian possessions arose out of the complaints of oppression, and the disputes of persons in authority there, which at different times during the last reign were brought before the Company and Parliament in this country. One of the resolutions adopted on this important subject at a meeting of the Court of Proprietors, on the 10th of May 1773, was, “that an application should be made for a new charter of justice, to enable the Company to add to each of the Mayors Courts at the three Presidencies, and to the Courts of the Governors and Councils as Courts of Oyer and Terminer, a barrister to act as recorder, to extend the powers of the Mayors Courts.” The additional words of the resolutions are most remarkable on the present occasion : “and particularly to introduce the privilege of the habeas corpus into India.” It is remarkable, too, that in a petition presented to the House of Lords in the same year, the East India Company stated, “that the most effectual provision of all others to prevent oppression which was recommended by the Company viz. that of the habeas corpus, whereby men might know of what crime they were accused, and by whom imprisoned, was omitted.” The Supreme Court of Judicature at Calcutta was opened on the 22nd of October 1774, from which period, for a long course of years, writs of habeas corpus were regularly issued; most of them apparently to native subjects, and not to those who by way of distinction are called British subjects residing in those territories. On the 16th of January in the year following a motion was made for a habeas corpus to the keeper of a place called the prison of the Dewanee Cutcherree, to bring up a person confined there, and the writ was ordered to issue. It should be observed, that by the 13th Geo. III. c. 63 [The Regulating Act, 1773], the King’s Court had no more jurisdiction in Calcutta over natives or others, except as a Court of Oyer and Terminer and Gaol Delivery, than in any other part of the dominions of the Crown of England within the Presidency, and that the Zemindary Courts of the Company continued to exercise a jurisdiction over natives in Calcutta, just as the

31AND THE LORD SAID UNTO— Zemindary Courts do at the present time. Those Courts are exclusive, as to the complaints, suits and actions against natives not in the employment or service of the Company, or of a British subject, and not brought before the Court of Oyer and Terminer and Gaol Delivery. On the 17th of January a return was made to a habeas corpus which had been granted to a person of the name of Golum Hider, to produce Sum ju, a female infant of eleven years of age, stating that the child was voluntarily under his care, and not underrestraint. On the 19th of January of the same year a writ was issued to Jona Mullick, keeper of the prison of the Dewanee Adawlut in Calcutta, to bring up the body of Banchuram Roy. That writ was objected to by counsel on Saturday the 21st of January, inasmuch as it issued on the statute of Cha. II., and was not marked per statum. It was answered by the Chief Justice that the writ might be considered as at common law. A motion then was made for quashing the writ, because the common law of England did not extend to India, or at least to no other than British subject: but this motion was rejected by the court; for on January the 31st a return was made to the writ, and the doctrine was by consequence denied. But when, on the 2nd of March in the same year, the return was read again, stating the imprisonment to be in a civil suit for debt, by order of the Court of Dewanee Adawlut, the Supreme Court at Calcutta proceeded to inquire whether that court, which undoubtedly possessed a competent jurisdiction in many cases, possessed in it that which was then under discusson. The plaintiff was a British subject, and the defendant his gomastah or steward, and therefore in the employment of a British subject; both parties were amenable to the jurisdiction of the Supreme Court, and neither of them within that of the Dewanee Adawlut. The keeper of the prison being in court to make his return, the prisoner was discharged. The Supreme Court thus exercised its authority in determining that the return did not bring the prisoner within the jurisdiction of the inferior court. Again, on the 28th of March 1775, a return was made by Jona Mullick, keeper of the gaol of Fousdary Adawlut, to habeas corpus, to bring up the body of one Seremani there confined. On the 23rd of December in the same year a writ of habeas corpus, directed to Warren Hastings, esquire, the Governor-General, to bring up the body of Joseph Pavessi, was returned in court, the return being

32 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES made by the Governor-General himself, without the slightest intimation of objection, and the said Pavessi was discharged, the Governor-General having declined to state as true, in an amended return, a necessary fact which he had only on report. Pavessi had been taken up in order to be sent out of India contrary to law, he being not a British subject.* It appears, therefore, that at that early period the reform of the Indian Governments, and the superintendence of the English law over the settlement, were considered synonymous; and one great object contemplated by the Company itself, was the introduction of the writ of habeas corpus, authorizing any man deprived of his personal freedom to compel the party who imprisoned him to show that he did so by authority of law. At Calcutta, various instances of the same kind might be cited, and others have occured at Madras. The importance of the writ of habeas corpus has been strongly and justly felt. Whatever Act was passed, and whatever charter was granted, subject to whatever limitation of powers, there was no exception to that writ, and no limitation of its sphere in any of those statutes or charters. But the writ of habeas corpus was expressly given to the Supreme Court of Calcutta by the letters-patent of the 13th Geo. III. **,they conferred upon that court “such jurisdiction and authority as our Justices of the Court of King’s Bench have and may lawfully exercise within that part of Great Britain called England, as far as circumstances will admit.” The writs of habeas corpus issued under that power do not appear to have been questioned in any manner which could raise a doubt as to their authority. The erection of the Supreme Court of Bombay has reference to the powers given to the Supreme Court of Calcutta. The 4th Geo. IV.(c. 71), indeed gives His Majesty the power by *This and the preceding cases appear to have been quoted from a pamphlet published in October 1828, at Bombay, and entitled “Proceedings of the Governor and Council at Bombay towards His Majesty’s Supreme Court of Judicature.” They are there stated to have been extracted from MS., notes made by one of the Judges appointed at the first establishment of the Supreme Court at Calcutta. **[ The text of the charter is given in Morley’s Dig. Vol. II., p. 549. The constitution and powers of the High Court of Calcutta are now defined by letters patent of Dec. 28,1865 (Stat. R. and O. Rev. Vol. (iv,) p. 82), issued in pursuance of the Indian High Courts Act, 1861 (24 and 25 Viet. C. 104) ]