Vol. 17, Part II · pages 56–60

33AND THE LORD SAID UNTO— charter or letters patent, “to erect and establish a Supreme Court of Judicature at Bombay, with full power to exercise such civil, criminal, admiralty, and ecclesiastical jurisdiction, both as to natives and British subjects, and to be invested with such powers and authorities, privileges and immunities, for the better administration of the same, and subject to the same limitations, restrictions, and control, in the said town and island of Bombay and the limits thereof, and the territories subordinate thereto, and within the territories which then were or thereafter might be subject to or dependent upon the Government of Bombay, as the Supreme Court of Judicature at Fort Williams in Bengal, by virtue of any law then in force and unrepealed, did consist of, was invested with, or subject to, within the said Fort Williams, or the places subject to or dependent upon the Government thereof; provided always, that the Governor and Council at Bombay, and the Governor-General at Fort Williams aforesaid, should enjoy the same exemption, and no other, from the authority of the Supreme Court of Judicature to be there erected, as were enjoyed by the said Governor-General and Council at Fort Williams aforesaid for the time being, from the jurisdiction of the Supreme Court of Judicature there.” That is the only proviso for the exemption of the Governor and Council of Bombay; but the Governor-General and Council of Fort Williams are not only exempted from the jurisdiction of the Court, *but have by the 21st Geo. III, the power of exempting others also from its jurisdiction by their order in writing; which approaches very nearly to the latter in question. In pursuance of this Act of 4th Geo. IV. [c. 71] His Majesty erected the Supreme Court of Judicature at Bombay, by his Letters Patent [Morley’s Dig. Vol. II. p. 638]. By these letters he gave to it various powers and authorities which are exercised by his ordinary *21st Geo. 3, c. 70,s 2. “If any person or persons be impleaded in any action or process, civil or criminal, in the said Supreme Court, for any act or acts done by order of the said Governor-General and Council, in writing, he or they may plead the general issue, and give such order in evidence; which said order, with proof that the act or acts done have or has been done according to the purport of the same, shall amount to a sufficient justification of the said acts, and the defendant shall be fully justified, acquitted and discharged from all and every suit, action and process whatsoever, civil or criminal in the said Court”. By section the third of the same Act it is provided, that with respect to such order of the Governor-General and Council as shall extend to any British subject or subjects, the court shall have and retain as full and competent jurisdiction as if the Act had never been made.

34 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES writs in the Kingdom of England; and he thought proper to limit the extent of its civil jurisdiction, of its ecclesiastical jurisdiction, and of its jurisdiction as a Court of Oyer and Terminer; but these are the only respects in which he limited, as to the extent of territory, those powers which the court was to possess. The clause limiting the civil jurisdiction is in these words [clause 28]: “And we do further direct, ordain and appoint, that the jurisdiction, powers, and authorities of the said Supreme Court of Judicature at Bombay shall extend to all such persons as have been heretofore described and distinguished in our charters of justice for Bombay by the appellation of British subjects, who shall reside within any of the factories subject to or dependant upon the Government of Bombay.” It thus states, that all the jurisdiction, powers, and authorities of the Supreme Court of Bombay are to extend to those persons; but it cannot mean that the general jurisdiction of the court extends to no others. But if the whole of the article be read thus, “That the jurisdiction, power, and authority of the Supreme Court of Bombay shall extend to (and that the said court shall be competent and effectual, and shall have full power and authority to hear and determine all suits and actions whatsoever against) any of our said subjects distinguished,” etc.; it would then apply only to the civil jurisdiction alone, as to suits and controversies, and have no reference to any limitation on the other jurisdiction of the court. In like manner the Court of Equity is to extend over all the same persons as those who have civil suits. So again, in speaking of the criminal jurisdiction, the charter [clause 44] authorizes and empowers the said Supreme Court to “inquire, hear, and determine of all treasons, murders, felonies, misdemeanors, etc. committed by any of the King’s subjects in any of the territories subject to or dependent upon the Government of Bombay.” Now, if all the powers of the court had been previously limited by the clause of the charter granting the civil jurisdiction to subjects residing within the factories, this clause would be inconsistent with it. It, therefore, shows that limitation not to extend to all its powers and authorities, but to its civil jurisdiction alone. The result is then, that first, all the general powers of the Court of King’s Bench throughout a district including Poona and Tannah, the places in question, are given to the Supreme Court; then a civil authority is given, limited to a smaller district; and then other jurisdiction are given it, limited in the same manner.

35AND THE LORD SAID UNTO— The language of this charter thus becomes as intelligible as the principle on which it rests. The native subject shall not have his contract interpreted by a foreign law; but it equally imports him, whether contending with another native, or with a British-born subject, to be secured from that invasion of individual liberty, without which no justice of any kind can be obtained. The distinction is manifest between the ordinary objects of civil and criminal justice, and the high prerogatives vested in the Crown for the immediate protection of all its subjects. The powers which belong to His Majesty by virtue of his royal station, to be exercised by him through his Judges in the Court of King’s Bench, exist in conquered countries as well as those to which he succeeded when he came to the Crown. They cannot be taken from him, but by his own concurrence with the two other branches of the Legislature, in words which can leave no doubt of the intention to make so great a sacrifies. In these letters patent there is also this proviso [clause 45]: “That the Supreme Court shall not be competent to try any indictment or information against the Governor-General and others who are specified, except in particular cases.” Now the power of granting a criminal information is not involved in that of trying actions and indictments; yet the proviso clearly implies, that in all cases excluded from it under the circumstances there directed, the Supreme Court might hear a motion for a criminal information. It was only in the year 1827 (R. V. Wright, 1827, Morley’s Dig. Vol. I. p. 120) that Sir Charles Grey had occasion to give a judgement, which proves the opinion of that learned Chief Justice on the subject. A motion was made for a criminal information against a variety of persons who had obstructed a Sheriff ’s officer in executing the process of the court. Some of the parties complained of were native subjects not open to the ordinary jurisdiction; no indictment could have been preferred against them. But the others were British subjects, or those employed by British subjects, who clearly would not fall within the exception. Sir Charles Grey expressly recognizes the distinction which we have drawn. “A question had been made, whether the Court possessed authority to grant a criminal information against Mendy Ally Khan, as it had been said that he was not subject to this jurisdiction, as he was not an inhabitant. In his own opinion, however (the opinion of the Chief Justice of Bengal), the question

36 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES of the jurisdiction of the court should not be entertained. There were two distinct powers of jurisdiction vested in the court, that of Oyer and Terminer and of the Court of King’s Bench. The former was limited; but the latter was not, but extended throughout all the Provinces under this Government. It was his opinion, that the Supreme Court possessed authority to grant information anywhere in the Company’s territories, for any act for which the Court of King’s Bench could issue one in England. The Court had a complete power of punishing any native, foreigner, or other person whosoever, contempt or violent obstruction of the process of the court, in the same way as the Court of King’s Bench. It would be perfectly anomalous to say that it did not possess the power of punishing that by the more deliberate mode of information, which could be effected by the mere summary process of attachment. He could not confine it to that question, seeing that they possessed the jurisdiction of the Court of King’s Bench. He did not know that the Court might enter into a criminal information against any person whatever. He should state, however, that such an authority should be executed sparingly, and with caution. This would set the question of the grounds of the criminal information at rest, as their jurisdiction over Mendy Ally Khan did not depend on his being an inhabitant of Calcutta.” He then proceeds to say, “that as some of those persons were not subject to indictment, and those subject to it were the least guilty parties, he would not grant a criminal information, but thought it better to leave it altogether to an indictment.” In this passage the power to try indictments is clearly separated, both from the right to issue attachment for contempt, and from that of granting criminal informations. Indictment can be tried by the Supreme Court only in its character of a Court of Oyer and Terminer, and its power to try them is bounded by the terms of the exception; but the power of punishing contempt is inherent in all courts. The power of proceeding by criminal information is inherent in the Court of King’s Bench and is transferred, without limitation as to persons, by the terms of the charter to the Supreme Court. Numerous cases might be drawn from the books, if authority were wanted, to inform your Lordships that, that power does exist

37AND THE LORD SAID UNTO— in the manner described. In Bourn’s case, Cro. James, p. 543, “Montague, Chief Justice, said that the privilege of the Cinque Ports, that the King’s writ runs not there, is to be intended between party and party, but no such privilege can be against the King : and this writ (a writ of habeas corpus) is a prerogative writ which concerns the King’s justice to be administered to his subject; for the King ought to have an account why any of his subjects are imprisoned; and it is agreeable to all persons and places, and no answer can satisfy it but to return the clause with paratum habeo corpus, etc.; and this writ hath been awarded out of this court to Calais, and all other places within the Kingdom, and to dispute it is not to dispute the jurisdiction, but the power of the King and His Court, which is not to be disputed; and of this opinion were all the other justices;” This doctrine of Lord Chief Justice Montague is fortified by precedents of the King’s writ having been awarded to Calais and other places within the dominion of the Crown of England, and has been fully recognized by the Courts in a variety of cases between that time and this. Lord Mansfield, in the case of Cowle, 2 Burrow’s Reports, p. 834, laid it down that the King’s writ must be said to run in all places throughout his dominions, but that this was not the case with all writs; and therefore, when he came to lay down the rule in that case, his Lordship directed it to be entered that writs of venire facias do not run in the town of Berwick; but he decided also, that the high prerogative writs arising out of a different source have a much more extensive operation. Now these high prerogative arise out of the natural allegiance the subject owes to the King, and the protection which that allegiance requires of the King for the subject? This is the principle which is stated in Calvin’s case in 7th Report (1), viz., that allegiance is the duty of the subject, and that protection is the duty of the King. Whenever therefore the subject owes allegiance, the King owes protection. Now can it be contended that in the case of any conquered country annexed to his Majesty’s dominions the inhabitants of that country do not owe him allegiance? If they do, it must follow that the King must owe them protection, and that protection is to be, as in the present instance, given, by his issuing by virtue of his prerogative his writ of habeas corpus, that he may know whether they are lawfully imprisoned or not; or his writ of certiorari, that he may know whether any