Vol. 17, Part II · pages 66–70

43AND THE LORD SAID UNTO— jurisdictions may be conceded; but it does not follow that they should have in the territory at large a jurisdiction, either to attach upon individuals not of the designated class, or to control the proceedings of other courts of a distinct authority. The distinction appears to have been wisely and considerately adopted by the Legislature. At Fort Williams, at Madras, and Bombay, the English law had prevailed for at least a century. It had prevailed, at all events, from the charter of Geo. I. (1726 : 13 Geo. I). It was known as the existing law there antecedently to the year 1774 : persons had been tried and condemned under the local jurisdiction of Calcutta for forgery and other crimes created by English status. Those who came to those towns, which were a kind of English colonies, came to the English law: they came to a place where they could no more evade the jurisdiction than men who come to England have a right to be tried by the law they leave behind them. The other class was a class who became subject, by their own acts, the servants of the Company, or British subjects, etc. etc.; who by voluntarily entering into those services rendered themselves subject to the jurisdiction of the King’s Courts. It was the policy of the law to leave those persons out of the local limits and of the designated classes, in point of jurisdiction, to be governed by their own law; and the exception was an exception to which they subjected themselves; and this is the view taken of the subject in the speech of Sir Elijah Impey in the House of Commons [ Parliamentary History, Vol. 26 (1341-1416)]. The power enjoyed by the native or provincial court, is a power possessed by them long antecedent to the British conquests in India, and which exists, except where it has been altered by the legislative authority, which the British Parliament does not directly exercise, but which it has confided to the Governor General in Council. Thus all persons not subject to the King’s Courts are living under their own laws, under the authority of the British Legislature, and may be considered, to many purposes, as a separate nation under a different government. What is the power of the Court of King’s Bench supposed to be? The King himself formerly exercising his sovereign authority in the aula regis, which he now exercises by that court, still called the Court of our Lord the King before the King himself. The whole administration is derived from the ancient aula regis, the centre of all judicial authority; and all the

44 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES King’s courts are subject, without exception or distinction, to the control of the Court of King’s Bench. But the laws of England are not the laws of India. There is a code of laws which the King has thought fit, by the consent of his Parliament, to continue or enact and which are not the King’s laws in the sense that the laws of England are. There is therefore no analogy between the circumstances. The Courts in England are all drawn from the same source, they all flow in the same channel, they all apply to the same persons. But the laws in India are derived from a different source; they attach upon different classes of men; they have nothing in common with the laws of England. To confer upon the English courts of law existing locally in Calcutta or Bombay a control over the native laws and courts, would be a species of anomalous judicial administrtion, which we trust will never be sanctioned by the British Legislature. Previous to the estalishment of the Supreme Court in the year 1773, there were Mayors Courts at Calcutta, Madras and Bombay. The statute of 13th Geo. III. (c. 63) authorized the institution of a Supreme Court only at Calcutta. The language of that Act, and the charter founded upon it, gave rise to various discussions. Certain circumstances, which have been treated as precedents on the other side, took place previous to the 21st Geo. III. (c.70); but according to the best information which we have received, no instance is to be found since the passing of the 21st Geo. III. in 1781 (c.70), in which an attempt has been made by the Court at any one of the three Presidencies, to issue a writ of habeas corpus of the description now contended for. The statute of the 13th of Geo. III. (cap. 63) in the year 1773 provides (sect. 13) that his Majesty shall have power to erect a Supreme Court at Fort William, and a proviso to this effect is added (sect. 14): “That the said new charter, and the jurisdiction, powers and authorities to be thereby established, shall not may extend to all British subjects who shall reside in the Kingdom or Provinces of Bengal, Bihar, and Orissa, or any of them, under the protection of the said United Company; and the same charter shall be competent and effectual, and the Supreme Court of Judicature therein and thereby to be established shall have full power and authority to hear and determine all complaints against any of his Majesty’s subjects,

45AND THE LORD SAID UNTO— for any crimes, misdemeanors, or oppressions committed, or to be committed, and also to entertain, hear and determine any suits or actions whatsoever against any of his Majesty’s subjects in Bengal, Bihar, and Orissa, and any suit, action or complaint against any person who shall, at the time when such debt, or cause of action, or complaint shall have arisen, have been employed by or shall then have been directly or indirectly in the service of, the said United Company, or of any of his Majesty’s subjects.” Whatever obscurity or ambiguity may be found in particular clauses or expressions of this charter, or of the Act of Parliament, we apprehend that the court which was established was not a court of general jurisdiction throughtout all the Provinces, in the nature of the Court of King’s Bench, with certain exceptions, but a court of local and limited jurisdiction, with an extended jurisdiction, in certain cases, over certain descriptions of persons. This undoubtedly is a most material distinction in principle. It has been universally understood, that these are courts of limited and local jurisdiction, having a general jurisdiction within those local limits, not only over British subjects, but over all the native subjects, Mahommedans and Hindus as well as Christians, in all matters criminal and civil; subject to a proviso that the persons of different religions should be judged according to their respective religions, in certain cases; and that beyond these limits the courts shall have a certain jurisdiction over certain persons described to be British subjects, and persons in the service either of the East India Company or of other British subjects. The next material proviso (sect. 16) is, “That the Supreme Court shall hear and determine any suits or actions of any of his Majesty’s subjects against any inhabitant of India, residing in Bengal, Bihar, Orissa, or any of them, upon any contract or agreement in writing, where the cause of action shall exceed the sum of 500 current rupees, and where the said inhabitant shall have agreed in the said contract that in case of dispute the matter shall be heard and determined in the said Supreme Court.” This is certainly a very extraordinary provision to be introduced into an Act which is supposed to establish a court of general jurisdiction.

46 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES *The Act of 13th Geo. III. (c.63), and the charter founded upon it, gave rise to various disputes, arising, among other things, out of the issuing of the writ of habeas corpus; in cosequence of which the Act of 21 Geo. III. cap. 70, was passed for the purpose of removing doubts with respect to persons subject to the jurisdiction of the Supreme Court. The writ of habeas corpus had been issued to persons who were owners of land; and it was contended that any person who held the land and who paid rent, but had no other occupation connecting him with the East India Company, was to be considered as a person within the service of the East India Company, and as such within the general jurisdiction of the court. It has been said that applications were made on the part of the East India Company that provison should be made in the Act, giving power to issue the writ of habeas corpus. To what particular descriptions of persons the direction of such writs was intended to be confined is not stated; but if the subject was brought under the consideration of Government, and yet no clause was introduced in the Act of 21st Geo. III. (c. 70), then we have the less reason to suppose it was the particular intention of the Legislature to give the authority contended for. Certainly it is not expressly given, but the persons to whom writs of habeas corpus are said to have been addressed are expressly excepted from the jurisdiction of the Court in the 9th and 10th sections of that Act, which says, generally, that natives under the circumstances therein particularized shall not be subject to the jurisdiction of the court on account of those circumstances; thereby clearly assuming, that but for those circumstances as natives, they would not be subject to the jurisdiction of the court. And then a clause is added, “that for more perfectly ascertaining those natives who should be subject to the jurisdiction of the Supreme Court, the Governor General and Council should cause the name, description, and place of usual abode, of all natives employed in the service of the East India Company, with certain exceptions, to be entered in a book or books alphabetically disposed.” *For a short and entertaining, although perhaps not a very impartial account of these disputes, see Mill’s History of British India, Book 5th, Chapter 6th.

47AND THE LORD SAID UNTO— How, then, was this matter understood soon after the passing of the 21st Geo. III. (c.70)? Out of the transactions which took place between the year 1773 and the year 1781, various accusations arose against the individuals occupying certain high stations, and among others, there was a charge against the Chief Justice of the Supreme Court, Sir Elijah Impey, who made his defence in the House of Commons, in a speech which was afterwards printed in the shape of a separate publication, and is correctly copied in the 26th Volume of the Parliamentary History (1341-1416). “The charter,” says Sir Elijah Impey, at page 1358 of that work, “has given a criminal jurisdiction, not local and territorial, over the Provinces, but personal, over pan of the inhabitants, answering to certain descriptions; but the jurisdiction given over the inhabitants of Calcutta is universal, that being a territorial jurisdiction throughout the whole town of Calcutta.” The object of the learned Judge upon this occasion was different from that which is now the subject of consideration; for it became important for him to show that the jurisdiction in Calcutta was a general jurisdiction, and that the jurisdiction in the Provinces was not a general jurisdiction. “The first, as to the Provinces at large, is new, and was introduced by that charter. All the laws of England established by that charter I admit to be new, as to them, and only to be supported by the authority of that charter; but with regard to the town of Calcutta, the operation of the statute was different. Long before the erection of the Supreme Court in 1774, there had existed in Calcutta courts in the nature of Oyer and Terminer and Gaol Delivery, administering the criminal laws of England with a territorial jurisdiction over Calcutta. The 13th Geo. III. (c. 63) abolished these courts to make room for the Supreme Court. It gave to the Supreme Court the power of trying the same crimes, with a territorial jurisdiction co-extensive with that of the old court.” It has been intimated that the jurisdiction now contended for has been enforced at Madras. Such a jurisdiction is at variance with the doctrine stated by Sir Thomas Strange, Chief Justice of Madras in the year 1802, in the first Volume of his Reports (Notes of Cases at Madras), page 135, Nagapah Chitty v. Rachummah and another. He there says, “It has been truly observed, that it is impossible to argue in this court from any analogous cases of jurisdiction in the courts at home. Those courts being by their constitution, according