Vol. 17, Part II · pages 61–65

38 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES proceedings which have been commenced against them are conformable to the law; or his writ of prohibition, that he may keep the respective courts throughout his dominions in the due exercise of their duties; or his writs of mandamus, that he may oblige persons to do such acts as they are bound to perform. Therefore, when the King grants to a particular court, by virtue of the authority of an Act of Parliament, these powers arising out of his prerogative, the court has them in their full extent, unless he limits them, either as to extent of territory, or in some other way. Here the King has granted the same powers as the King’s Bench exercises in England, to be exercised by the Supreme Court of Bombay throughout a territory including the places to which these writs have been sent. It may be true, that the natives of India are not within the jurisdiction of the Supreme Court for the purpose of suing one another for private matters of dispute; that certain writs known to our law would not run as between party and party, and yet that the prerogative writs of the Crown being restrained by no clause in the charter, nor taken away by the direct words of an Act of Parliament, the sole power sufficient for that purpose must remain in the Crown, and exercised by that court to which the constitution has assigned so high and inestimable an authority. In the early part of his able argument in the Court of Bombay, the Advocate-General of Bombay referred to the celebrated Patna case, in the year 1777, before Sir Elijah Impey, and from his expressions, endeavoured to infer that the Court had no jurisdiction over the natives in a case like the present (Patna, Appendix, No. 17, Judgement of Sir, E. Impey, in the case of Nadarah Begum v. Behader Beg). “In this country, the gross body of the people are not, and only certain persons answering particular descriptions are, objects of the King’s laws or of the jurisdiction of this court. As therefore there are other laws and other courts, such as they are, to whom the bulk of the natives are amenable, and we were not anxious to extend our jurisdiction, we have suffered these pleas to the jurisdiction to be pleaded as freely as any other plea,” etc. On this doctrine great stress was laid by Mr. Dewar: but Sir Elijah Impey’s authority was not wanted in support of the fact, that natives

39AND THE LORD SAID UNTO— are exempt from the jurisdiction of the Supreme Court. The question still comes round. What jurisdiction is here contemplated? Is it that jurisdiction to issue high prerogative writs, which cannot be abolished without positive enactment; or is it that jurisdiction to decide those controversies between party and party, which the law designates by the name of suits and actions ? Sir Elijah must have referred to the latter in the case where he permitted please to the jurisdiction to be freely pleaded. It was then argued, that because this Act of the 21st Geo. 3, cap. 70, enacted (section 11) that “Governor-General and Council should cause the name, description and place of usual abode and all natives employed in the service of the East India Company, in the offices therein mentioned, to be entered in a book or books to be alphabetically disposed,” that those precautions would hardly have been taken to ascertain what natives should be subject to the jurisdiction, if all natives without exception were. But in a limited sense of the word, we have no objection to admit that certain classes alone are within the jurisdiction. The registry of all the persons described is equally desirable for this purpose, whether our argument in favour of its embracing all in its more liberal sense, be well or ill founded. Having spoken of the high prerogative writs in general, we proceed to speak of the writ of habeas corpus in particular. In the year 1818 the doctrines held concerning that writ were examined by Lord Eldon, in Crowley’s case, 2nd Swanston, p. 1. A person had been committed by commissioners of Bankrupt for not answering satisfactorily, a motion was made for a writ of habeas corpus in vacation, and the question whether he possessed such a power was discussed by him with great care. He found a case in point decided by Lord Chancellor Nottingham (Jenkes’s case, 1676, 6 How St. Tr. 1189); but he resolutely overruled that decision when he found it inconsistent with the principles of the law of England. He treated it there as known law, that no man’s liberty should be invaded without the supreme legal authority having power to pronounce immediately on the reason of that restraint; and that this prerogative of the King might be called into action at any time, and could not be affected by general words in a statute. The case of Moro Ragonath (1 Knapp, 8) gave rise to the extraordinary interference of the Governor and Council of

40 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Bombay. In that case, although a writ of habeas corpus issued, the body was not brought into court, nor any return made to the writ, though a strange, anomalous, questionable document, came from the person to whom it had been sent. The fact stated in that document, if true, might have been returned to the court, and the cause, if sufficient, would have been admitted by the court. If appeared too on the proceedings that the person to whom the writ was directed had obtained the authority of Mr. Dunlop, a Justice of Peace of that part of the world, to keep Moro Ragonath in custody, and we apprehend may well be considered as an agent employed by Mr. Dunlop, and thus answering the narrowest description of those within the jurisdiction. It is a much less daring presumption than the fiction in the law, that any person brought before the Court of Common Pleas by habeas corpus is a privileged person; and therefore Lord Eldon and Mr. Justice Blackstone commend the Common Pleas for presuming the party arrested to have their privilege when they knew he had not, because the law cannot endure that a man under unjust imprisonment shall return to it. It can hardly ever indeed happen that a person in the Indian territory should be imprisoned without the intervention of English subjects properly so called. The gaoler, in almost every case, is a native; all the officers of the native courts are natives; but the authority of the native courts is almost always under the control of English subjects. Servants of the East India Company preside over their jurisdictions. It would require a great deal of ingenuity, and a most remarkable concurrence of circumstances to find any person imprisoning another, and not acting under the employment of British subjects. The letter-missive to the Supreme Court (1 Knapp, 4) assumes to repeal the letters patent granted by the King in respect of all except those residing within the island of Bombay, or such as have been employed by the British authorities; it claims to refuse the execution of writs directed to any officer of the Provincial Courts; and in conformity with this assumption of power by the government were its proceedings in the case of Bappoo Gunness (1 Knapp, 6). The Counsel then proceeding to comment on the terms of the letter of the Governor and Council to the Judges.

41AND THE LORD SAID UNTO— The Lord Chancellor (Lord Lyndhurst) observed, “What we have met here for is to ascertain the jurisdiction of the Supreme Court of Bombay. The object is discussion of what their power is.” The prerogative of issuing writs of habeas corpus is inherent in the Crown, and can only be abolished by express words and none such are found in the charter. Such writs are issuable by the law of England from the Court of King’s Bench, and they run into any dominions under the sway of the English Crown. Such writs have frequently issued from the English Supreme Courts at the several Indian Presidencies, which have all the powers of the English King’s Bench vested in them by Act of Parliament. Certain restrictions are imposed on the jurisdiction of the Supreme Court with regard to the persons subject to it; but those must be applied, by a reasonable construction, to its ordinary operations as a Court of Oyer and Terminer and of Gaol Delivery, not extended to the power of issuing those high prerogative writs which are indispensable for the safety of all the liege subjects of the Crown when urgent necessity demands immediate and decisive inter-position. But even if the subjects purely native could not be questioned for the imprisonment of a fellow subject, still the agents of those courts which act under British Judges are manifestly excluded from the pretended exemption. The celebrated statute of habeas corpus (31 Car. II. c.2) is intituled, “An Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas;” and in The King v. Cowle (R. v. Cowle, 1759, 2nd Burr. 835), it is stated, that the power of the King’s Bench in England extends to the granting writs of this description directed to persons in the colonies, though the necessity for issuing them had not then occured. That the court has such a power, appears from the authority of Lord Mansfield [King v. Cowle, 2nd Burrows (835)], and from the fact that writs of this description have issued into all the dominions of the Crown of England. They may, and do, extend, therefore, beyond the limits of the ordinary civil jurisdiction of the court here; and so in India the Supreme Court may have this jurisdiction throughout all the conquered territories, though its civil jurisdiction be limited to Bombay alone. The duty of the Court of King’s Bench in England,

42 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES in such cases, has been most correctly stated by Lord Coke, in his description of the authority of the Court of King’s Bench (Co. Instit. pt. 4, cap. 7); “For the pleasure of God and the quiteness of our subjects, to save our conscience and to keep our oath, by the assent of our great men and other of our Council, we have commanded our Justices that they shall from henceforth do even law and execution of right to all our subjects, rich and poor, without having regard to any person, without letting to do right for any letters or commandment which may come to them from us, or any other, or by any other cause”. If the Court of King’s Bench in England would not have neglected to do right for any letters the King of England might send to them, it is too much to expect that the Judges of the Supreme Court of Bombay should, without remonstrating receive from the Governor and Council of that Settlement a letter or commandment interfering with the upright and conscientious discharge of their judicial functions. Bosanquet and Spankie (Serjeants) for the East India Company.– It is obvious, from the words of the Act of the 4th of his present Majesty, that the intention was not to give any jurisdiction to the Supreme Court at Bombay within the territories subject to Bombay, beyond that exercised by the Supreme Court within the Presidency of Fort Williams. In one respect, it will be found that the jurisdiction given by the charter carrying into effect the objects of that Act is less. But, for the present, let us suppose that the authority conferred is to the full extent the same as that conferred on the Supreme Court of Fort Williams. The great principle of the jurisdiction of the new courts which were established in India by the 13th of Geo. III. (Morley’s Dig. Vol. II., p. 549) was this, that so far as locality was concerned in the town of Calcutta, there was conferred an unqualified territorial jurisdiction over all the inhabitants. There is another jurisdiction, not so extensive in its effects, though reaching throughout the dominions subject to the Presidency, applicable to the designated classes of persons. The two things are most perfectly distinct; and we admit that so far as the privileges and authorities of the Court of King’s Bench in England can be applied, either to the localities of Calcutta or Bombay, or to the designated classes, the